Understanding the Law
If you need to remove an executor from a Will, it's good to know the rules. The process is guided by Section 34 of the Administration and Probate Act 1958 (Vic). To take this step, an application must be made to the Supreme Court of Victoria.
Duties of an Executor:
The role of an executor is critical. They must act in the best interests of the estate and its beneficiaries and manage the estate promptly and effectively. Some of the key responsibilities include:
calling in and collecting the assets of the estate;
paying debts and taxes;
managing the estate's financial affairs; and
distributing the estate in accordance with the Will.
If a party with a significant interest in the estate feels as though the appointed executor is not properly executing their duties, they may be able to apply to the Court for assistance.
Who Can Apply?
Anyone with a significant interest in the matter can apply. This usually includes beneficiaries of the Will but can also include others who have a substantial reason.
Reasons for Removing an Executor:
According to the Act, some of the key reasons why the Court might agree to remove an executor include:
Long Absence: If the executor has been out of Victoria for more than two years.
Willingness to Step Down: If the executor wishes to be discharged from their duties.
Inability or Unfitness to Serve: If the executor refuses to act, is unfit to carry out their duties, or is incapable of handling the responsibilities.
In such cases, the Court can appoint someone else to take over the role, ensuring that the estate is managed properly.
Proving Unfitness or Incapability:
To show that an executor is unfit or incapable, you need solid evidence. This could include:
Health Issues: Medical reports that demonstrate the executor is no longer capable due to a health condition.
Misconduct: Proof that the executor has neglected their duties, failed to communicate with beneficiaries, or mishandled assets.
What Happens After Removal?
Once an executor is removed, they are no longer responsible for any actions taken after the Court’s order. Depending on the conduct of the removed executor during their term as executor, there may be consequences or penalties imposed against that person to 'make good' the estate.
Need Help?
Navigating the removal of an executor can be complex. At Andrews Crosthwaite Lawyers, we have the experience to guide you through this process. Whether through negotiation or court action, we are here to assist you. Call us at 9450 9400 or email us at info@andcro.com.au to arrange a consultation with an experienced estate lawyer.
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