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Dealing with a Problem Executor:
Rights, Duties, and Removal

WILLS AND ESTATES

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The executor of an estate holds enormous responsibility, and enormous power over the beneficiaries who depend on them. Most executors act honestly and diligently. But some delay, some favour certain beneficiaries, some make poor decisions, and some – in the most serious cases – help themselves to estate assets. If an executor is not distributing the estate, communicating with beneficiaries, or properly administering the deceased’s affairs, you have legal options. This guide explains what they are. 

What Are an Executor's Duties?

An executor in Queensland acts under the Succession Act 1981 (Qld). In NSW, the equivalent framework operates under the Succession Act 2006 (NSW) and the general law of equity. In both jurisdictions, an executor holds a fiduciary position — they must put the interests of the estate and its beneficiaries above their own. 

An executor’s core duties include: 

  • Locating and securing all assets of the estate as soon as practicable after death 
  • Applying for a Grant of Probate within a reasonable time — typically within six months in NSW, with no fixed deadline in Queensland but delay is disfavoured 
  • Paying all valid debts, liabilities, and testamentary expenses from estate assets 
  • Maintaining and preserving estate assets — including arranging insurance and appropriate investment 
  • Keeping proper accounts of all estate transactions 
  • Communicating with beneficiaries about the estate’s administration — including providing information about assets, liabilities, and expected distributions 
  • Distributing the estate to the beneficiaries in accordance with the will — ideally within twelve months of death, though complex estates legitimately take longer 
  • Acting impartially between beneficiaries — not favouring some at the expense of others 

⚠ Being an executor and a beneficiary of the same estate is common and is not itself a breach. But where the executor-beneficiary’s personal interests actually conflict with their administration duties, the courts will intervene. 

What Timeline Should Executors Follow?

Courts do not impose a rigid timetable, but they do expect due diligence and reasonable expedition. The ‘executor’s year’ — an informal principle that estates should complete administration within twelve months of death — guides expectations. Complex estates with multiple assets, properties in multiple states, businesses, or contested claims legitimately take longer. 

What the courts will not tolerate: an executor sitting on the estate indefinitely without apparent reason, refusing to communicate with beneficiaries, failing to pay obvious debts, or failing to progress probate and distribution. 

In NSW, an executor must not distribute the estate within the first six months from the date of death — this window protects the rights of potential family provision claimants. After six months, the executor may distribute provided they have published a notice of intended distribution and waited 30 days. An executor who distributes during the protected period without court authorisation accepts personal liability for the consequences. 

Grounds for Removing an Executor

Courts approach executor removal with caution — it is a significant step, and courts prefer to give executors an opportunity to correct their conduct before removing them. Grounds that support removal include: 

  • Serious breach of fiduciary duty: Misappropriating estate funds, favouring one beneficiary over others, making unauthorised investments, or failing to keep proper accounts 
  • Gross and persistent delay: Failure to apply for probate, failure to progress the administration, or failure to make distributions without adequate explanation over an extended period 
  • Refusal to act: An executor who does nothing and refuses to engage with beneficiaries may face compulsory removal 
  • Incapacity: Mental or physical incapacity that prevents the executor from performing their duties 
  • Conflict of interest: Where the executor’s personal financial interests create an actual — not merely theoretical — conflict with the estate’s interests 
  • Misconduct or dishonesty: Forging documents, misrepresenting the estate’s assets, or criminal conduct in connection with the administration 

 

Under section 52 of the Succession Act 1981 (Qld), a person aggrieved by an executor’s failure to perform statutory duties can apply to the court, which may order the executor to comply, pay damages, or pay interest. In NSW, the court’s jurisdiction to remove an executor and substitute an administrator operates under the NSW Trustee and Guardian Act 2009 and the court’s inherent jurisdiction over its own grants.

What Beneficiaries Can Do Before Going to Court

Litigation to remove an executor is expensive and courts expect beneficiaries to attempt informal resolution first. Before filing any application, consider: 

  • Written request: Send a formal letter to the executor requesting a specific response — accounts, a distribution timeline, or an explanation for delay — within a defined period (typically 14 days) 
  • Solicitor’s letter: A letter from a solicitor often produces a response where informal requests do not 
  • Request for estate accounts: Beneficiaries have a right to information about the estate. In Queensland, an executor must pass accounts if ordered by the court under UCPR rules 645–648. A formal request for accounts puts the executor on notice that beneficiaries are paying attention 
  • Mediation: In some disputes, a mediator can facilitate an agreement about the administration timeline or address specific concerns without court involvement 

Executor's Commission: An Additional Flashpoint

Executors generally perform their role without payment — executors are not entitled to commission unless the will provides for it, the beneficiaries unanimously consent, or the Supreme Court approves it. An executor who simply assumes entitlement to commission and deducts it from the estate without authorisation commits a breach of duty. 

Where commission is sought, the court assesses the quantum based on the work actually performed — not a fixed percentage. An executor claiming excessive commission, or taking commission before court approval, gives beneficiaries grounds to challenge it. Commission disputes in Queensland and NSW are a common flashpoint in estate administration — and a commission challenge can serve as leverage to bring a broader administration dispute back under control. 

Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances. 

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Frequently asked questions

There is no universal answer — it depends on the estate’s complexity and the executor’s conduct. A simple estate with liquid assets and no disputes should be substantially complete within twelve months of death. If six months have passed without probate even being applied for and the executor is not communicating, it is time to seek legal advice. The longer the delay, the more damage accumulates to the estate — and the stronger the case for court intervention. 

Being both executor and beneficiary is common — most executors are beneficiaries. The courts will not remove an executor simply because they stand to benefit under the will. Removal requires evidence of actual conduct that jeopardises the estate — not just the theoretical possibility of conflict. Courts look for real prejudice to the estate, not abstract risk. 

When a court removes an executor, it can appoint a replacement administrator — often a professional trustee company, or a beneficiary who applies for the role. The new administrator steps into the executor’s position and continues the administration from that point. All assets, accounts, and records transfer to the new administrator. 

Yes — in serious cases of executor misconduct or breach of duty, the court can order that the executor pay costs personally, rather than from the estate. This is reserved for conduct that is clearly improper — not merely poor decision-making or administrative delay that has a reasonable explanation. 

Act Before the Estate Deteriorates Further

At HQF Lawyers, Brett Mason-Smith has direct experience as executor in complex estate matters — and that experience informs how we advise beneficiaries dealing with problem executors. Our estate litigation team acts for beneficiaries and estates across Queensland and New South Wales.
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