An executor is responsible for looking after the affairs of a deceased person, including carrying out their wishes as set out in the deceased’s will. Most often executors are nominated by the deceased in their will, but co-executors (including the NSW Trustee and Guardian or a trustee company) can be also appointed under some circumstances. These responsibilities include:
- Locating and interpreting the will
- Funeral arrangements
- Applying to the NSW Supreme Court (the Court) for probate
- Finding and preserving the assets
- Payment of debts
- Lodging tax returns
- Defending any claims against the estate, and
- Distributions to beneficiaries in accordance with the will.
…But what happens if an executor does not wish to take on these important responsibilities, or if beneficiaries are not happy with a person named in the will as executor?
Renunciation
A person named executor can renounce probate under s 69 of the Probate and Administration Act 1898 (NSW) (the PAA Act). If they do this their right to be an executor ceases, and the administration of the testator’s estate is transferred as if the person was never appointed.
Failing to Act
A person who neglects or refuses to act as required by the court is likewise taken to have renounced the appointment (PAA Act, s 69). Likewise, if an executor neglects or refuses to take probate within 3 months of the date of the death of the testator, the Supreme Court of NSW (the Court) may order that another interested person be appointed instead. That other interested person need not be someone nominated in the will.
Court Appointment of an Administrator
The Court may appoint an administrator if the deceased has left a will without appointing an executor, or if a named executor is unwilling, incompetent or lives outside NSW (PAA Act, s 74).
Delegating
An executor can also delegate their duties by appointing the NSW Trustee and Guardian or a trustee company to act in their place. This appointment is made by a deed (PAA Act, s 75A).
Removal
The Court can remove an executor if continuing in the role will jeopardise the proper administration of the deceased estate. This can occur due to personal incapacity, misconduct (such as misappropriation of funds), or if the executor is not fit to carry out their duties. However, this procedure can also be used where the executor simply wants to be relieved because the role has become overwhelming. The application can be made by an interested party, or the executor and the power to make these orders arises under the Court’s inherent jurisdiction.
Takeaways
- Those making a will to consider the responsibilities that will be placed upon the people to be nominated as executors. Will they be capable or willing to carry out the work required to administer the estate?
- A person named as an executor in a will does not have to take on these responsibilities as long as they take appropriate steps.
- Interested parties such as beneficiaries can take steps to remove executors if they are unfit, unsuited or mismanaging the estate.
Finn Roache can assist with all your wills and estate needs. We will provide thoughtful advice to assist with estate planning. Our team also gives compassionate and thorough legal assistance to those navigating the process of fulfilling legal responsibilities when a loved one passes away.