Removal Of Executor (NT)
A will-maker (testator) appoints an executor in their will to manage their affairs after they die. This executor is typically selected from the testator’s immediate family or a close friend, or even a professional such as a solicitor. The executor is in charge of administering the estate according to the deceased wishes and the beneficiaries’ best interests. However, on occasion, an executor is ill-suited to his or her position because of their conduct or lack of capacity. In that case, the Administration and Probate Act 1969 allows for the removal of an executor. This article explains how the Supreme Court of the Northern Territory removes an executor and under what circumstances this is necessary.
The Duties Of An Executor In The Northern Territory
An executor takes charge of the deceased’s affairs upon their death. This means first locating the deceased’s will and arranging for their funeral and burial (or cremation). After that, the executor often needs to apply to the Supreme Court for a Grant of Probate. This probate grant authorises the executor to legally assume authority for the deceased estate. The executor needs to secure all the deceased’s assets and pays their debts. Whatever remains of the deceased estate is then distributed to the rightful beneficiaries after the probate period.
Although these duties sound straightforward, they involve a range of fairly complex administrative duties. More importantly, however, they involve placing complete trust in the executor. The executor takes possession of all of the deceased’s assets and (guided by the testator’s wishes) sells or disposes of property as he or she deems appropriate. The executor also has authority to sign contracts on behalf of the estate and represent the estate in litigation.
The Responsibilities Of An Executor In The Northern Territory
An executor has a fiduciary duty to:
- communicate promptly and clearly with the beneficiaries of the will;
- keep careful account of the estate’s debts and assets; and
- administer the estate without undue delay.
Removal Of Executor In The Northern Territory
Under the Administration and Probate Act, the Supreme Court can remove an executor who wishes to renounce the responsibility. If an executor wishes to resign from their role as executor, they can fill out a Renunciation of Probate form from the Supreme Court. By submitting this form, the executor confirms that they no longer wish to have authority over the estate and are renouncing all powers and rights granted by the will and the probate grant.
The Supreme Court can also revoke probate for an executor who is not currently a suitable representative. An executor may have been an excellent choice to administer the estate at the time that the testator wrote the will, but now show signs that they are no longer up to the task. In that case, a beneficiary might need to apply to remove an executor if they suspect that they lack the necessary legal capacity. An executor who has lost capacity poses a risk to the beneficiary’s interests because of their poor administration and risk-taking behaviour. The beneficiaries can forestall these risks by acting promptly to remove an executor who shows signs of legal incapacity.
Removal Of Executor: Misconduct
A beneficiary may need to arrange the removal of an executor because of their misconduct. For instance, the executor might:
- fail to properly communicate with the estate beneficiaries;
- misappropriate assets of the estate; or
- be currently incarcerated or have previously committed a serious crime.
The executor can also be removed if they are neglectful in their duties to manage the estate. It may be cause for the removal of the executor if they seem disinclined to complete their duties, are overseas or otherwise unlocatable for lengths of time, or make negligible progress with the estate. An executor should finalise an estate within a reasonable timescale, generally within twelve months (commonly known as the “executor’s year”).
Arranging The Removal Of An Executor In The NT
The court is disinclined to remove an executor other than in exceptional circumstances. There needs to be sufficient evidence that the executor is unable to discharge their duties and that the court needs to step in to protect the rights of the beneficiaries.
A beneficiary can apply to the Supreme Court to remove an executor for misconduct or lack of capacity. The court will remove an executor who remains out of the Territory for longer than two years or is incapable of discharging their duties because of unfitness or refusal. The beneficiary will need to supply evidence to substantiate their claims, such as medical evidence of legal incapacity or evidence of executor inaction or illegality. If the court is satisfied that the removal is warranted, it can appoint an administrator to assume authority over the deceased estate.
Please call 1300 636 846 or contact Go To Court if you need assistance or legal representation on any matter, including advice on the removal of an executor in the Northern Territory.