Yes, a court (often involving the Master's office in some jurisdictions like South Africa) can remove an executor for serious misconduct, incapacity, or failure to perform duties, but it's a significant legal step requiring strong evidence, not just disagreement, focusing on the estate's welfare over the deceased's wishes. Grounds include embezzlement, major delays, conflict of interest, or severe mismanagement, leading to a court appointing a replacement administrator if convinced.
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.
The Process of Removing an Executor from a Will
If the executor's reasoning is not satisfactory, they refuse to act properly, or they do not respond, you may proceed by making an application to the court in order to remove them.
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.
Grounds for Removing an Executor
It is possible to have an executor removed from an estate, but it should be noted that this can only be done by the Master of the High Court or a court of law, on the grounds listed in section 54 of the Administration of Estates Act 66 of 1965 (“the Act”). The Act governs the conduct of executors in deceased estates.
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.
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.
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.
Removal of an Executor FAQs
How long does it take to remove an Executor? Again, this depends on the circumstances and complexity of the case. However, it can take around 12 months for the claim to reach court for a final hearing, if applicable.
An executor has the authority and responsibility to manage a decedent's estate, gather the decedent's assets, pay their remaining debts, and distribute those assets to beneficiaries and heirs. However, the decedent's will and applicable probate laws can impose limitations on an executor's power.
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.
An executor becomes unsuitable to perform his duties if there is either a conflict of interest or some form of serious misconduct. As regards misconduct, this must be very serious in nature, leading to the estate suffering as a result of the misconduct.
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.
Below are 9 of the most common mistakes your Independent Executor can make.
If you have sufficient evidence to believe that the executor has misapplied or embezzled estate assets (or is about to do so), they can be removed. The court will also remove them if they exhibit gross misconduct or mismanagement in the performance of their duties.
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.
Many people don't realize that executors can be held personally responsible for estate debts if they distribute assets to heirs before properly paying creditors. This isn't just a theoretical concern, it's a real risk that can turn an act of service into a financial nightmare.
Section 54 outlines the grounds for removal by the Master or the Court, while Section 22 provides for objections to the appointment of an executor. Grounds for removal include incapacity, invalidity of the Will, fraud, theft, dishonesty, or a criminal conviction resulting in imprisonment without the option of a fine.
No, one executor cannot remove another without obtaining a court order. An executor can remove themselves as an executor by “renouncing” their appointment before carrying out any of the duties of an executor.
A court that removes an executor must appoint someone else to take over the job. If the will names an alternate executor, generally, the court would appoint that person to serve unless there's some legal reason the person can't fill the post.
Rights of Heirs to an Estate
As we noted, succession order is dictated by state law, but in most cases it follows spouse - children - descendants - close relatives. Keep in mind, there are a number of assets that ideally will be set up to pass directly to a beneficiary, even if a Will or Trust doesn't dictate it.
Inherited funds are considered excluded or “separate property” if the funds are kept separate during the marriage. While it's relatively easy to keep certain assets, like real estate or business interests, separate, maintaining this separation with assets such as cash and investments demands careful attention.
In most cases, adult children are not entitled to inherit their parents' money and property under the terms of their parents' estate plan. You may, however, have the right to receive a copy of their will if they have one.