Once an executor has obtained a Grant of Probate from the Supreme Court, the executor cannot resign from this position without approval of the Court.
Approval for an executor’s removal will only be made where the executor:
- wishes to resign;
- remains out of Victoria for more than two years; or
- refuses or is unfit to act or is incapable of acting as executor.
Applications on the second and third reasons are usually made by beneficiaries of the Estate but can be made by co-executors. Persons who wish to bring a claim against an Estate for provision are not ordinarily permitted to bring a removal application.
There are no categories of what makes an executor “unfit to act”. The essential requirement is that the executor’s removal is in the best interests of the Estate and the beneficiaries. By way of example, the Court has previously removed executors where:
- unreasonable delay has occurred in the administration of an Estate;
- the executor has failed to provide information and accounts to the beneficiaries; and
- the relationship between the executor and beneficiaries or co-executors is so “unworkable” that it interferes with the administration of the estate (i.e. a deadlock prevents any reasonable progress in the administration of an Estate).
When an application is made, the executor will either:
- consent to the removal and the Court will appoint an administrator to finalise the Estate; or
- contest the application.
As with all litigation, there are risks in contesting a removal application as the outcome will be determined by the Court. For example:
- the Court may refuse the application if removing the executor would result in further delay to the finalisation of the Estate or cause the cost to unreasonably reduce the assets of the Estate, particularly in small Estates or if the finalisation of the Estate is almost complete;
- instead of removing the executor, the Court may order that:
- all executors (including any co-executors) are removed and replaced with an independent administrator; or
- the executor takes certain steps to administer / finalise the Estate, fulfils certain obligations such as signing documents to complete a sale or is monitored by, for example, an independent auditor,
- the Court will decide who should be pay the costs of the removal application. The costs are not always paid out of the Estate.
For advice and assistance in bringing or defending a removal application, please contact Estate Lawyers in your state.