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Removing or Replacing an Executor in Victoria
A practical Victorian guide for beneficiaries concerned about an executor — when removal is justified, the evidence required, the alternatives worth trying first and what to weigh before commencing proceedings.
An executor holds a position of trust. They are appointed to administer a deceased estate honestly, promptly and in the best interests of the beneficiaries. Most executors discharge that role competently. But where an executor cannot or will not do the job — through delay, conflict, misconduct or capacity issues — the beneficiaries are not without a remedy. The Supreme Court of Victoria has a clear power to remove an executor and appoint a replacement.
This article explains the duties an executor owes, the grounds on which removal or replacement may be ordered, the evidence that the Court will expect to see, and the practical alternatives that should be considered before any proceeding is commenced.
Duties of an Executor
An executor's core duties are set out in the Administration and Probate Act 1958 (Vic), in general trust law, and in the directions given by the Court when probate is granted. In summary, the executor must:
- identify, collect and preserve the deceased's assets;
- pay debts, taxes and funeral expenses;
- keep proper records of all transactions affecting the estate;
- act impartially as between the beneficiaries and avoid any personal conflict of interest;
- administer the estate within a reasonable time — traditionally referred to as the "executor's year";
- account to the beneficiaries for the assets, the dealings with them and the proposed distribution; and
- distribute the estate strictly in accordance with the Will (or, in the case of intestacy, the statutory order).
For a more detailed treatment, see our companion guide on the duties of an executor in Victoria.
When Problems Arise
Problems with executors tend to emerge in a recognisable pattern. Communication slows. Information requests are ignored. Months pass with no obvious progress. Assets stay in the deceased's name. Beneficiaries hear nothing about timing or distribution. Eventually, the silence itself becomes the issue.
Beneficiaries should not rush to litigation. But they should also not assume that things will fix themselves. The longer problems are left, the harder they are to resolve.
Failure to Administer the Estate
The most common ground for concern is a simple failure to get on with the administration. The executor may have obtained probate years ago, with the assets still untouched, the property unsold and no distribution made. Where there is no satisfactory explanation, that pattern alone can justify the Court intervening.
Conflicts of Interest
An executor must put the interests of the estate ahead of their own. Conflicts arise when, for example, the executor wants to buy estate property at a discount, or is a competing claimant under a family provision claim, or has lent money to the estate without proper authority. A genuine, ongoing conflict that cannot be managed is grounds for removal.
Delay and Inaction
The benchmark of one year from the grant of probate for a straightforward estate is well known. It is not a statutory deadline, but it does set a baseline against which delay is measured. Significant delay without a credible explanation — particularly where the executor cannot or will not say when the estate will be distributed — is a serious matter.
Misconduct and Breach of Duty
More serious cases involve actual misconduct: mixing estate funds with personal funds, paying expenses or distributions that were not authorised by the Will, selling estate assets without proper process, or preferring one beneficiary over another. Where misconduct is established, removal is not merely a remedy — it is often the minimum response required to protect the beneficiaries.
Applications to the Court
Applications to remove or replace an executor are made to the Supreme Court of Victoria under section 34 of the Act. The Court has a broad discretion. It will consider:
- the strength of the evidence about the alleged problems;
- the impact of the conduct (or inaction) on the beneficiaries;
- whether the issues can be addressed by less drastic means — for example, by directions, an order for accounts, or the appointment of an additional executor; and
- the availability of a suitable replacement, including an independent professional executor where the family is divided.
The Court's overriding focus is on the proper administration of the estate, not on punishing the executor.
Evidence Required
Removal applications are evidence-heavy. The Court will usually want to see:
- a clear chronology of the administration to date;
- correspondence demonstrating requests for information and the executor's responses (or silence);
- evidence of any specific breaches — bank statements, valuations, sale records, accounting entries;
- evidence of any conflict of interest;
- if capacity is in issue, medical evidence; and
- a proposal for who should replace the executor and their consent to act.
Alternative Solutions
Removal is the most serious remedy. It is rarely the first step. Before issuing proceedings, consider:
- A demand for accounts. Beneficiaries are entitled to a proper account of the estate and the executor's dealings with it. A request for accounts often produces information that either resolves the concern or focuses it.
- A negotiated retirement. Where the executor recognises the problem, they may be willing to retire and consent to a replacement. This avoids the cost and bitterness of contested proceedings.
- An additional executor. In some matters the issue is workload or competence rather than misconduct. The appointment of a co-executor — often a solicitor or trustee company — can restore momentum without removing the existing executor.
- Directions from the Court. An executor in genuine doubt about how to proceed can ask the Court for directions. Where that route is open, a short directions application can fix the underlying problem faster than removal.
- Mediation. Where the dispute is as much about family dynamics as administration, mediation can produce a workable outcome that proceedings cannot.
Practical Considerations Before Commencing
- Define the problem. Is it delay, conflict, misconduct, capacity or hostility? The answer drives both evidence and strategy.
- Gather documents. A removal application is only as strong as the documentary record behind it.
- Identify the proposed replacement. The Court will want to know who will take over and that they consent to act.
- Weigh the cost. Removal proceedings are expensive and the costs ultimately come out of the estate or the parties' own pockets. The strategy should be proportionate to the size of the estate.
- Consider the relationship. Proceedings between family members about an estate are rarely a healing experience. Be honest about what outcome is achievable and what cost — financial and personal — is acceptable.
- Get advice early. A short, properly advised letter to the executor is often the most efficient first step, and frequently produces a negotiated outcome without proceedings.
Related Reading
- The Duties of an Executor in Victoria
- Executor Disputes: What Happens When Executors Cannot Agree?
- Probate in Victoria
- Testamentary Trusts Explained
- Why Every Victorian Adult Needs a Will
Frequently Asked Questions
Can a beneficiary remove an executor?
A beneficiary cannot remove an executor directly. They can ask the Supreme Court of Victoria to do so under section 34 of the Administration and Probate Act 1958 (Vic). The Court will remove or replace an executor where it is satisfied that doing so is necessary for the due and proper administration of the estate.
What are the most common grounds for removal?
Misconduct, conflict of interest, prolonged delay or inaction, failure to keep proper records or account to beneficiaries, mental or physical incapacity, hostility with beneficiaries that prevents the estate being administered, or any combination of these. The Court focuses on whether the executor can continue to administer the estate in the interests of the beneficiaries.
Is delay alone enough to remove an executor?
Significant unexplained delay can be enough. The benchmark is roughly twelve months from the grant of probate for a straightforward estate, with extensions for complexity or genuine reasons. Delay of several years with no proper explanation is a serious concern.
Can an executor resign instead of being removed?
Yes. Where an executor accepts that they cannot continue, they can renounce or apply to be discharged before significant administration steps are taken, or apply to retire after that point. A negotiated resignation is usually faster and cheaper than a contested removal application.
Who pays the legal costs of a removal application?
Costs depend on the outcome and the parties' conduct. Where removal is justified, the removed executor often bears their own costs personally and may be ordered to indemnify the estate. Where the application is unsuccessful, the applicants may bear their own costs and, in some cases, the executor's costs as well.
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This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.