Removing The Executor Under A Will in Queensland: Where To Draw The Line
If you are a beneficiary under a will and have lost confidence in the executor’s ability to perform their duties in administering the estate, then you should be aware of your legal rights to begin the process of removing the executor.
Being appointed as the executor of an estate is a significant commitment, with legal as well as personal duties to both the deceased person and their beneficiaries under the will. Unfortunately, not everyone is able or willing to perform their duties as required. Fortunately, there are a number of self-help as well as court ordered remedies to either compel an executor to act properly, or remove them altogether and have someone else appointed.
What are the executor’s duties?
The Succession Act 1981 (QLD) governs the way in which personal representatives (including executors and administrators) are required to act in administrating an estate. Section 52 identifies their key duties to:
- Collect and “get in” the real and personal property of the estate;
- If required by the court, provide a full inventory of the estate’s assets and liabilities;
- Seek a grant of probate or letters of administration;
- Meet the reasonable expenses of the estate; and
- Distribute the estate in accordance with the Will or Intestacy rules within one year of the death of the deceased.
No matter the size of the estate, for a first-time executor (likely to be a friend or child of the deceased) these duties can be intimidating. They will often include making enquiries with Superannuation providers, financial institutions, and accountants, as well as applying to the court for probate. This is particularly so with large and complex estates involving trusts, multiple corporate entities, and family businesses.
What an executor must not do:
It is also regrettably common that an executor knows exactly what is happening, and is actively seeking to obscure the assets of the estate from beneficiaries either for their own gain, or is simply not interested in the timely and complete distribution of the Estate. The follow are examples of what an executor must not do:
- Deviate from the Will maker’s intention without a court order or consent of the beneficiaries;
- Misappropriate assets of the estate;
- Neglect their duties;
- Favour one beneficiary over others;
- Make significant decisions that affect the beneficiaries without their consent; or
- Incur unnecessary costs or waste the resources of the estate.
Removing the executor: what can a concerned beneficiary do?
Renunciation
The starting point, is to ascertain whether the executor will voluntarily relinquish their duties by renouncing their position as Executor. This is of course the most cost-effective solution which avoids the costs of going to court when removing the executor. If the will appoints multiple, or an alternative Executor, this is particularly viable. Unfortunately, if you suspect an executor is knowingly abusing their position, this is unlikely to be resolved without conflict.
Loss of Capacity
If a beneficiary suspects that the executor has lost legal capacity to administer the Estate, they can make an application to the court to have the executor removed. Such an application should not be made lightly, as it will have cost implications for the Estate or even the applicant personally.
If a grant of probate has not been made, the beneficiaries may apply for a “passing over” of the compromised executor, where an alternative is provided for under the Will.
Improper actions or failure to act
If an executor has engaged in misconduct, or is reasonably suspected to have, a party can make an application to the Supreme Court to have the executor removed and replaced by someone else. The applicant will need to satisfy the court that the suspicion of the executor is well founded, and goes beyond a mere distrust or, to use a common example, long-lasting tension between family members.
The court can either appoint a new executor entirely, or put the executor on notice to perform their duties properly. One form of relief is a “limited grant.”
When one party has placed a caveat on probate preventing the administration of an Estate, a court can allow an executor to perform only specific duties, which in effect, tightens the leash on the executor ensuring that they will act only in accordance with what the Court has ordered them to do.
There are no executors left under the will, so who should be appointed?
Any application to remove an executor should of course address the question of who is to take their place. While evidence can be given to the court as to why the applicant, or another beneficiary should take the role of executor, a common course of action is to appoint an independent administrator. The benefits of appointing an independent administrator include:
- Neutrality: an independent administrator is exactly that. They will not be swayed by conflict between the beneficiaries, and will simple do what is necessary to give effect to the testator’s will.
- Efficiency: an independent administrator is often an accountant or senior lawyer that is experienced in the area of deceased estates, and will be well placed to understand what is required and perform the required work to resolve any issues.
- Protection of the estate: while appointing an administrator does come at a cost, the value that they provide in discovering, maintaining and disclosing assets of the estate in the interim can far outweigh the cost of their appointment. This is particularly so when the deceased has left a web of corporate entities, that if left unattended, can attract significant penalties from the ATO.
Costs and risks of an application to remove an executor
As canvassed above, removal of an executor by a court is not taken lightly, as it is seen as a disturbance to the last will of the deceased. Evidence must be led to convince a judge that there is a valid reason why the existing executor should not continue to perform the role. In addition to this, an application can have serious cost implications for the estate, especially where multiple applicants and respondents are involved.
It is important to keep in mind the commerciality of bringing court proceedings, which can be obscured by the multitude of emotions and stress that can arise in disputes between family members. Obviously, the smaller the estate, the less commercial it is to run an expensive application in the Supreme Court. Despite this, beneficiaries are often left with little choice but to litigate to protect their interests.
If you find yourself in this situation, either as an executor or beneficiary, the experienced estate lawyers at Rostron Carlyle Rojas can help you find the balance between protecting your rights whilst maintaining a commercial and practical view of the dispute. Get in contact with Michael Sing today on 07 3009 8444 or by email at [email protected] today to arrange a time to discuss your options.
