Speak Directly To a Lawyer Now

1300 038 223
Open 7am - Midnight, 7 days
Or have our lawyers call you:
  • This field is for validation purposes and should be left unchanged.

What Happens if the Executor Won’t Apply For Probate?

The role of executor requires the appointed person to exercise a number of responsibilities. In some cases, the person nominated may be unsuitable for the role due to being unable or unwilling to carry it out in the way they are required to. When an executor is not acting in the interests of the beneficiaries, they can be held accountable. This article outlines what can be done when an executor won’t apply for probate.

What are the duties of an executor?

An executor is responsible for administering the deceased estate. This includes paying any outstanding debts and distributing the remaining funds or assets according to the wishes the testator set out in their will. The executor is also responsible for organising the testator’s burial or cremation and funeral.

An executor has the following duties:

  • To communicate in a clear and timely manner with the beneficiaries;
  • To keep meticulous records of the transactions they have performed in relation to the estate;
  • To dispose of the estate in the best interests of the beneficiaries;
  • To finalise the deceased estate within a reasonable time (generally a year from the date of the testator’s death);
  • To provide the beneficiaries with a final statement confirming the estate has been finalised.

Hostile executors

There are a number of ways an executor may fail to discharge their duties. They may fail to provide a copy or to facilitate inspection of the will by an interested party such as a beneficiary. They may fail to get in contact with the beneficiaries within a reasonable time. Or they may fail or refuse to apply for probate.

If you are involved in a matter where the executor is hostile, you should seek legal advice as soon as possible. It may be possible to rectify the situation through correspondence with the executor and avoid the need to take the matter to court.

Renouncing probate if executor won’t apply for probate

If an executor won’t apply for probate, it may be necessary to ask them to renounce probate. An executor can voluntarily renounce probate if they are unwilling to take on the role.

If an executor renounces probate and there are other executors named in the will, then any of the remaining executors can apply for probate.

If there is only one executor named and that person renounces probate, an application for Letters of Administration with the Will Annexed will need to be made by one of the beneficiaries or another interested person in order for the estate to be administered.

Requiring executor to apply for probate

If the executor will not voluntarily renounce probate, a notice can be served on them requiring them to apply for probate. If this notice is not complied with, an Application for Letters of Administration with the Will Annexed can be made by an interested party.

Letters of administration with the will annexed

If the executor won’t apply for probate, it may be necessary for another party to make an application for Letters of Administration With the Will Annexed. This application allows the administrator to manage and distribute the assets of the deceased estate.

Letters of Administration With the Will Annexed is an application that is made when a person dies testate but the executor is unable or unwilling to act. This may be because they have died, cannot be located or are unwilling to co-operate. When a person dies intestate, an application should be made for Letters of Administration.

If an application for Letters of Administration With the Will Annexed is uncontested, it is decided on the papers by the registrar.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Legal Hotline
Open 7am - Midnight, 7 Days
Call 1300 038 223