Sometimes, the person nominated as an executor in a Will may not be suitable or may be unable or unwilling to be the executor. When an executor is not acting in the beneficiaries’ interests, they can be held accountable.

What are an executor’s duties?

An executor’s responsibilities in administering the deceased estate include:-

1. organising the cremation or burial, and funeral of the deceased;
2. paying any outstanding debts; and
3. distributing the remaining funds or assets in accordance with the deceased person’s wishes as set out in the Will.

An executor’s duties include:-

1. communicating with the beneficiaries in a clear and timely manner;
2. keeping meticulous records of the transactions they have performed for the estate;
3. disposing of the estate in the beneficiaries’ best interests;
4. finalising the estate within a reasonable time (generally a year after the deceased person’s death); and
5. providing the beneficiaries with a final statement confirming finalisation of the estate.

A hostile executor

An executor may fail to discharge their duties by failing:-

1. to provide a copy of the Will to an interested party such as a beneficiary;
2. to get in contact with the beneficiaries within a reasonable time; or
3. to or refusing to apply for probate.

If you are involved in a matter where the executor is hostile, you should seek legal advice. Rectifying the situation by corresponding with the executor may avoid having to take the matter to court.

Renouncing probate

An executor who is unwilling to take on the role can voluntarily renounce probate. If an executor won’t apply for probate, you may have to ask them to renounce probate. If an executor renounces probate and other executors are named in the Will, one of the remaining executors can apply for probate in their stead.

If only one executor is named in the Will and they renounce probate, for the estate to be administered, one of the beneficiaries or an interested person must apply for Letters of Administration with the Will Annexed.

Requiring the executor to apply for probate

If the executor will not voluntarily renounce probate, a notice requiring them to apply for probate can be served on them. If the executor does not comply with this notice, another interested party can apply for Letters of Administration with the Will Annexed.

Letters of Administration with the Will Annexed

When a person who has made a Will dies but the executor named in the Will is unable or unwilling to act, applying for Letters of Administration with the Will Annexed allows the administrator to manage and distribute the assets of the deceased estate. The executor may be unwilling to co-operate, or cannot be located, or have died. An uncontested application for Letters of Administration with the Will Annexed is usually decided by the Registrar on the papers.

An application for Letters of Administration should be made when a person dies without having made a Will (i.e. intestate),

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Contact us for free no-obligation initial telephone advice if you require legal advice or representation regarding a deceased estate.