What happens if an executor cannot be found or refuses to act?

What is an executor of a will?

An executor is a person named in the will of the deceased and is responsible for the administration of the estate until the final distribution of the estate is made to the beneficiaries. The executor would search for the will, apply to the Supreme Court for a Grant of Probate, lodge taxation returns, collect and transfer assets, keep proper records and finally, distribute assets to the beneficiaries.

The executor can refuse to prove the will or can renounce his or her position as an executor. If this happens, other nominated or substitute executors can apply for probate. If the deceased left a valid will, but the named executor cannot or will not apply for a grant, a party with the greatest proprietary interest under the will may be granted letters of administration with the will annexed. Such application can also be made if an executor cannot be found.

In many cases, especially when spouses appoint each other as executors, one of the sole executors, who may also be primary beneficiary may be too ill to apply. If this is the case, then the persons who would be entitled to share in the estate of the executor if he or she were to die without a will, may apply for administration with the will annexed.

An executor cannot be forced to apply for a grant of probate even if they are named as such in a will. Once appointed, an executor is not able to resign under normal circumstances. An executor can resign if there is a conflict of interest. If an executor resigns, he or she cannot assign another person to act in his or her place. The court would need to make this appointment.

We can provide you with advice regarding Wills, Estates and related matters.

If you would like assistance, please contact Wollerman Shacklock Lawyers on 9707 1155 or admin@wslegal.com.au.