The role of executor comes with responsibilities. The nominated person may be unsuitable for the role due to their inability or unwillingness to carry it out in the required manner. An executor who is not acting in the beneficiaries’ interests can be held accountable. This article outlines what can be done when an executor won’t apply for probate.

What are an executor’s duties?

An executor is responsible for administering the deceased estate. This includes paying any outstanding debts and distributing the remaining assets according to the testator’s wishes as set out in the will. The executor is also responsible for organising the testator’s funeral and cremation or burial.

An executor’s duties are:

1. To keep meticulous records of the transactions they performed in relation to the estate;
2. To dispose of the estate in the beneficiaries’ best interests;
3. To finalise the deceased estate within a reasonable time (generally a year from the date of the testator’s death);
4. To communicate in a clear and timely manner with the beneficiaries;
5. To provide the beneficiaries with a final statement confirming the estate has been finalised.

Hostile executors

Ways in which an executor may fail to discharge their duties include:

1. failing to get in contact with the beneficiaries within a reasonable time;
2. failing to provide a copy of the will or to facilitate inspection of it by an interested party (e.g. a beneficiary); or
3. failing or refusing to apply for probate.

If the executor is hostile, you may be able to avoid the need to take the matter to court. It may be possible to rectify the situation through correspondence with the executor.

Renouncing probate if executor won’t apply for probate

If an executor is unwilling to apply for probate, it may be necessary to ask them to renounce probate.

If an executor renounces probate and there are other executors named in the Will, then any of the remaining executors can apply for probate.

If there is only one executor named and that person renounces probate, one of the beneficiaries or another interested person will need to apply for Letters of Administration with the Will Annexed for the estate to be administered.

Requiring 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 the notice, an interested party can make an Application for Letters of Administration with the Will Annexed.

Letters of administration with the Will annexed

If the executor won’t apply for probate, another party may need to apply for Letters of Administration With the Will Annexed. This allows the administrator to manage and distribute the deceased estate‘s assets.

An application for Letters of Administration With the Will Annexed is made when a person dies testate but the executor is unable or unwilling to act. They may be unwilling to co-operate, cannot be located, or have died. When a person dies intestate, an application should be made for Letters of Administration.

If an application for Letters of Administration With the Will Annexed is uncontested, it is decided on the papers by the registrar.

Here to Help

Contact us for legal advice or representation if the appointed executor is unwilling or unable to act in the role.