No, a solicitor cannot unilaterally "override" an executor, as the executor holds the legal duty to administer the estate; however, beneficiaries or other executors can apply to the Supreme Court to have an executor removed or passed over for misconduct, fraud, incapacity, or if they are not acting in the estate's best interests, a process where solicitors often provide legal representation. While a solicitor might manage the process for a client, the ultimate authority to change an executor rests with the court, not the solicitor.
Legitimate reasons for seeking removal include:
In NSW, the Supreme Court can remove an executor after probate has been granted—this requires evidence of misconduct, incapacity, serious delay, or a conflict of interest. If the executor has not yet obtained probate, the process is more straightforward.
An executor has the powers to handle the estate from the moment of death but, without a death certificate and often without a Grant of Probate, which confirms the executor's authority, an executor may not be able to get assets collected and distributed without getting the Grant.
In all other respects the only way to remove an executor or administrator after a grant has been made is upon the application of the other executors or beneficiary(s). The Court, if satisfied that the executor or administrator should be removed will make an order revoking the grant.
Apply to remove the executor: If the executor is not acting in the best interests of the estate, you may apply to the court to remove them from their role. Common grounds for removal include misconduct, inability to act due to illness, or failure to act in a timely manner.
The first step is to consult with a wills and estates lawyer. Beneficiaries can petition the court to have the executor removed or the executor can ask to be removed. This process can take a long time and there is generally no guarantee that the courts will honour this request.
If an executor improperly interprets or deviates from a will's terms, beneficiaries have the right to challenge their actions. They can petition the court to compel the executor to follow the will or, if necessary, file a petition for instructions themselves to ensure the estate is administered fairly and properly.
The court will only remove an executor when there is evidence that he or she is unable to faithfully discharge their duties in the best interests of the beneficiaries. The court might declare an executor unfit if they display misconduct or neglect their duties because of carelessness, incompetence or actual intent.
If the Will appoints more than one Executor, you will have to administer the estate together. It is not always possible to act alone or override another Executor. However, if you believe that an Executor has failed in their duties or perhaps acted fraudulently, you can challenge them.
If you do write a new will, you can revoke the old one by destroying it. You can make small changes to your will – such as changing the executors or adding a legacy – by using a document called a codicil (more on this below).
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Yes, executors must inform beneficiaries about the will's administration, their entitlements, and the estate's progress, as it's a core fiduciary duty to be transparent and provide necessary financial information, with failure to do so potentially leading to legal action. This includes notifying them of assets/liabilities, distribution plans, tax obligations, and providing reports, ensuring a fair and timely distribution of the estate.
Beneficiaries of your estate may have legal options to hold an executor accountable for errors or mismanagement, including: Requesting an accounting of the executor's financial actions taken on behalf of the estate, including the assets collected, debts and expenses paid, and inheritances already distributed.
The biggest mistake people make with wills is failing to keep them updated after major life changes (marriage, divorce, new children, significant assets), leading to outdated wishes; other huge errors include using vague language, choosing the wrong executor, not understanding that a will doesn't avoid probate, failing to meet legal signing requirements, and not telling anyone where the will is located. In essence, many people either don't make a will or create one that becomes invalid or ineffective over time, causing chaos and family disputes.
Grounds for Removing an Executor
If an Executor is incapable of carrying out their duties due to mental or physical disability, the Beneficiary will need to apply to the court for them to be removed, with evidence, e.g. a certificate from the Responsible Medical Officer or the patient's doctor.
A direct heir (also known as an heir apparent or lineal heir) is who would be considered the decedent's next of kin, and they are first in line to inherit through intestate succession. If the decedent had been married when they died, their direct heir most likely would be their surviving spouse.
An inherited property is exempt from CGT if you dispose of it within 2 years of the deceased's death, and either: the deceased acquired the property before September 1985. at the time of death, the property was the main residence of the deceased and was not being used to produce income.
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While an executor cannot decide who gets what, they have many other powers. First, they must confirm their position as the executor in probate court. Once the court legally recognizes them as the executor, they have the power to act on behalf of the decedent's estate.
Conflict of interest: If the executor has a personal interest that compromises their impartiality. Incapacity: Executors who are mentally or physically incapable of fulfilling their responsibilities. Fraud or misconduct: Serious issues like dishonesty, theft, or deliberately disadvantaging beneficiaries.
Basic process for how to remove an executor
Obtain the consent of all beneficiaries: Unless the will specifically provides otherwise, all beneficiaries must agree to the removal of an executor. If any beneficiary objects, the court may still allow the removal if it is in the best interests of the estate.
A typical costs estimate for applying to court to remove an executor is between £10,000 and £30,000 plus VAT. However, in cases where the issues in dispute are complicated and the evidence is complex, then that figure could be greater. We therefore assess each case individually and on its own facts.
Beneficiaries, creditors, and other interested parties may object to certain executor actions. In addition to asking the court to stop or reverse an executor's actions and order the executor to compensate the estate for losses, an objecting party may ask the court to remove and replace the executor.