Removing an executor of a Will in NSW may be necessary if the person appointed to manage the estate is delaying, refusing to act, or mismanaging assets. Executors are expected to administer the estate fairly and promptly — but what happens when they don’t?
This guide explains the grounds for removal of an executor and what the process involves.
What Are the Responsibilities of an Executor in NSW?
An executor has the legal duty to handle and complete the administration of a deceased person’s estate. In NSW, their key duties include:
- Applying for probate (if required)
- Collecting and protecting estate assets
- Paying debts and taxes
- Distributing the estate to beneficiaries
- Keeping clear records and accounts
Executors must act in the best interests of the estate, avoid conflicts of interest, and follow the Will’s instructions. But if that person becomes unfit, unwilling, or unable to perform those duties, beneficiaries or other interested parties may apply to the NSW Supreme Court to have them removed.
When Can You Remove an Executor of a Will in NSW?
The Court will not remove an executor simply because of a disagreement. There must be strong legal grounds. These include:
- Misconduct or dishonesty: Using estate funds for personal purposes, failing to keep records, or acting in favour of certain beneficiaries over others are all serious breaches.
- Negligence or delay: If the estate has not been managed properly or the executor is causing unreasonable delays (e.g., not applying for probate), this may justify removal.
- Refusal to act: If an executor is ignoring their duties or refuses to respond to requests from beneficiaries, legal action may be required.
- Incapacity: Mental or physical incapacity, including illness, dementia, or absence overseas, can prevent an executor from fulfilling their obligations.
- Conflict of interest: Situations where the executor’s personal interests compromise their objectivity may also lead to removal.
- Fraud or criminal behaviour: Engaging in dishonest conduct, such as forging documents or misappropriating funds, is a clear ground for removal.
Examples of Executor Misconduct in Australia
These scenarios commonly arise in legal proceedings:
- An executor sold the deceased’s home to a relative at a heavily discounted price.
- The executor failed to pay taxes owed by the estate, resulting in penalties.
- A beneficiary repeatedly asked for updates, but the executor ignored all communication.
- The executor used estate funds to pay off their personal debts.
If you suspect similar behaviour, it may be time to explore your legal options.
What If the Executor Refuses to Distribute the Estate?
In NSW, executors are expected to distribute the estate within a “reasonable time” — typically within 12 months of death. If that doesn’t happen, and no good reason is provided, beneficiaries may take legal action. This could involve:
- Sending a formal letter requesting action
- Applying to the Court to compel distribution
- Filing an application to remove the Executor altogether
Delays caused by tax issues or property sales may be justified, but complete inaction or avoidance is not.
What’s the Legal Process to Remove an Executor in NSW?
In NSW, removing an executor requires a formal application to the Supreme Court — but only if there are solid reasons. Courts don’t take the decision lightly and will only act if the executor is clearly unfit or unable to perform their duties.
Step 1: Seek Legal Advice
Start by speaking with an experienced lawyer, such as one of our Estate Planning Lawyers Central Coast. We’ll help you assess whether your concerns meet the legal threshold for removal and advise you on the best course of action. This first step is crucial, as not every case will justify court intervention.
Step 2: Collect Supporting Evidence
To persuade the Court, you’ll need to show clear grounds for removal.
Gathering documentation early — including emails, timelines, and financial records — strengthens your case and may even prompt the executor to step aside voluntarily.
Note: If the executor hasn’t applied for probate yet, they can formally renounce the role by filing with the Court. This avoids a contested application, and another eligible party can step in without a hearing — unless there’s a dispute.
Step 3: File Your Court Application
Next, your lawyer will prepare and lodge a removal application in the Supreme Court, supported by affidavits and evidence. All relevant parties, including the executor and beneficiaries, must be formally notified.
Step 4: Attend the Court Hearing
If there’s a dispute, the case will go to a court hearing. Both sides present evidence, and the Court will decide whether the executor’s removal is in the best interests of the estate — not just the wishes of the beneficiaries.
What Happens After an Executor Is Removed?
If the Court removes an executor, it must ensure the estate is properly managed by appointing someone else to take over the role.
1. Appointing a Replacement Executor
If the Will names a substitute or alternate executor who is eligible and willing to act, the Court may authorise them to take over the administration of the estate.
Where co-executors were originally appointed, the Court may also decide that the remaining executor(s) can continue managing the estate without the need for a replacement.
2. Appointing an Administrator
If no alternate executor is named, or if all named executors are unwilling or unable to act, the Court may appoint an administrator instead. This person could be:
- A principal beneficiary
- A neutral third party (such as a solicitor or trustee company)
- The NSW Trustee & Guardian, if no suitable private individual is available
A beneficiary or even a creditor of the estate may apply to be appointed as administrator. The Court will select the person best placed to carry out the estate’s administration fairly and efficiently.
What Are the Legal Costs of Removing an Executor?
The cost varies based on complexity and whether the matter is contested. Here are some estimates:
- Simple, uncontested removal: $10,000 to $20,000
- Contested proceedings: $30,000 to $100,000 or more
Court filing fees, legal representation, and expert reports can all add to the expense. If you win the case, the costs may be reimbursed from the estate — but if you lose, you could be ordered to pay the other side’s legal fees too.
How Long Does It Take to Remove an Executor?
Again, this varies depending on the complexity of the case. Here are some typical time frames:
- Uncontested cases: Around 3–6 months
- Contested matters: 12–18 months or longer
Delays are often caused by court backlogs, evidence gathering, and negotiation between parties.
During this time, the estate may not progress, and assets may be frozen — so early action is important.
Conclusion
Removing an executor of a Will in NSW is a serious legal step — but sometimes, it’s necessary to protect the estate and ensure the deceased’s wishes are honoured. Whether due to misconduct, incapacity, delay, or outright refusal to act, the law gives beneficiaries the tools to seek justice.
Make sure you understand your rights and the risks before taking action. The process involves strong evidence, proper legal steps, and may take months or longer — especially if contested.
How Our Estate Planning Lawyers Can Help
We help clients across NSW navigate the complex process of executor removal. From initial advice to full representation in the Supreme Court, we guide you every step of the way. We’ll review your case, collect the necessary proof, and move quickly to safeguard your inheritance and peace of mind.
Concerned about how an estate is being managed or want to prevent future disputes? Contact one of our Central Coast Wills & Estate Planning Lawyers for a confidential consultation and clear advice on your next steps.
