National Crime 
What an executor must do — core duties
An executor is a fiduciary. That means they must act in the best interests of the estate and its beneficiaries, not in their own interests. The core duties include:
- Collect and preserve estate assets: Identify, secure, and protect all assets of the estate. This includes locating bank accounts, property, investments, personal effects, and any debts owed to the deceased.
- Pay debts and liabilities: Pay the deceased's debts, funeral expenses, and estate administration costs before distributing to beneficiaries.
- Account to beneficiaries: Keep proper records of all estate transactions and provide accounts to residuary beneficiaries when requested.
- Avoid conflicts of interest: The executor must not place themselves in a position where their personal interests conflict with their duties to the estate.
- Distribute the estate correctly: Distribute assets to the correct beneficiaries in accordance with the will (or intestacy rules) and at the appropriate time.
- Act without undue delay: Administer the estate within a reasonable time. In NSW, probate should generally be applied for within six months of death.
- Act impartially: Treat all beneficiaries fairly and not favour one over another.
Common allegations of executor misconduct
Disputes about executor conduct arise frequently. The most common allegations include:
Delay and Inaction
The executor fails to progress the estate administration. Months or years pass with no grant of probate, no communication with beneficiaries, and no steps taken toward distribution. In NSW, probate should generally be applied for within six months — unexplained delay beyond this is a red flag.
Self-Dealing
The executor uses their position to benefit themselves — selling estate assets to themselves at undervalue, taking estate property for personal use, paying themselves excessive fees or commissions without authority, or otherwise preferring their own interests over the estate's.
Failure to Account
The executor refuses to provide information about the estate's assets, transactions, or administration to beneficiaries who are entitled to it. Beneficiaries are left in the dark about what the estate contains and how it is being handled.
Improper Distribution
The executor distributes assets to the wrong beneficiaries, distributes before debts are paid, distributes without proper notice to potential claimants, or distributes before the expiration of the period for family provision claims (generally 12 months from death).
Conflicts of Interest
The executor is also a beneficiary or creditor and makes decisions that benefit themselves at the expense of other beneficiaries. Or the executor acts for multiple parties with competing interests without proper disclosure or consent.
Misappropriation
The most serious form — the executor takes estate assets for their own use without any lawful authority. This may constitute theft or fraud and can carry criminal penalties in addition to civil remedies.
Common mistakes — by executors and beneficiaries
Executor misconduct disputes are often made worse by mistakes on both sides. Understanding what can go wrong helps you avoid escalating a manageable situation into a costly legal battle.
Mistakes executors make
Treating the estate as their own
The most fundamental error: an executor who believes that because they are named in the will (and perhaps also a beneficiary), they can do whatever they want with the estate. The estate does not belong to the executor — it belongs to the beneficiaries. The executor is a trustee, not an owner.
Distributing too early
An executor who distributes the estate before the expiration of the period for family provision claims (generally 12 months from death) is personally liable if a claim is later made and there are insufficient assets to satisfy it. Patience is a legal requirement — not just good practice.
Ignoring beneficiary requests
Some executors believe beneficiaries have no right to information and simply ignore their requests. This is incorrect — residuary beneficiaries are entitled to accounts. Ignoring legitimate requests creates suspicion, fuels disputes, and can itself be evidence of misconduct.
Paying themselves without authority
An executor cannot unilaterally decide to pay themselves a commission or fee. In NSW, commission requires either the consent of all beneficiaries, a provision in the will, or a court order. Taking commission without authority is self-dealing and can lead to personal liability.
Failing to keep records
An executor who cannot produce records of estate transactions is in a difficult position when allegations are made. The absence of records can itself be treated as evidence of misconduct. Good record-keeping is not optional — it is a core part of the fiduciary duty.
Responding emotionally to allegations
When a beneficiary accuses an executor of misconduct, the natural reaction is often defensive or hostile. An emotional response — particularly one that cuts off communication — can turn a minor disagreement into litigation. A measured, professional response (ideally through a solicitor) is far more effective.
Mistakes beneficiaries make
Demanding immediate payment
Beneficiaries often expect their inheritance within weeks of the death. Estates take time — debts must be paid, assets may need to be sold, and the executor must wait for the family provision claim period. Demanding immediate payment when it is not feasible can damage the relationship and lead the executor to become less communicative.
Assuming the worst without evidence
Delay is frustrating but it does not necessarily mean misconduct. An executor may be waiting for a property valuation, dealing with a complex asset, or navigating a difficult family situation. Jumping to accusations of theft or fraud before understanding the situation can escalate a problem unnecessarily.
Making verbal accusations without documentation
Beneficiaries who call the executor and make heated accusations without putting their concerns in writing weaken their position. Written requests create a record. Verbal allegations can be denied or misrepresented later. Document everything.
Taking estate assets into their own hands
A beneficiary who believes the executor is mismanaging the estate sometimes decides to take matters into their own hands — taking possession of estate property, accessing bank accounts, or removing items from the deceased's home. This is unlawful and can seriously damage the beneficiary's position in any subsequent legal proceedings.
Waiting too long to act
While some beneficiaries are too aggressive, others wait too long. If the executor has already distributed assets to third parties, recovering them is far harder. If you have genuine concerns about executor misconduct, seeking legal advice early — before assets are distributed — is critical.
Assuming the executor knows what they are doing
Many executors are family members with no legal or financial experience. They may simply not understand their duties. A beneficiary who assumes bad faith when the real problem is ignorance misses the opportunity to resolve the matter through education and communication — which is almost always cheaper than litigation.
Act promptly — distribution can complicate recovery
If the executor has already distributed assets to third parties, recovering them is significantly harder — even if the distribution was improper. The executor may be personally liable, but enforcement against the executor personally is more difficult than stopping an improper distribution before it happens. If you have concerns about executor misconduct, seek advice before assets are distributed.
For beneficiaries — raising concerns about executor conduct
If you are a beneficiary and believe the executor is not fulfilling their duties, there is a spectrum of responses available. The appropriate response depends on the nature and severity of the conduct:
- Request information and accounts: Start by requesting, in writing, the information you are entitled to — including a summary of estate assets and liabilities, an update on administration progress, and accounts of estate transactions. Many disputes resolve at this stage if the executor responds.
- Formal letter from a solicitor: If informal requests are ignored, a solicitor's letter setting out your concerns and the executor's obligations can prompt action. This also creates a record of your requests and the executor's response (or lack of it).
- Court orders for accounts: The Supreme Court can order an executor to produce accounts and provide information to beneficiaries. An application for accounts does not necessarily seek the executor's removal — it compels transparency.
- Application to remove the executor: If the executor's conduct is seriously improper, or if they are unable or unwilling to administer the estate properly, the court can remove them and appoint an independent administrator.
- Application for compensation or surcharge: If the executor's misconduct has caused loss to the estate, the court can order the executor to compensate the estate personally.
For accused executors — protecting yourself
Being an executor is a serious responsibility, and disputes with beneficiaries are common — particularly in families where relationships are strained. If you are facing allegations of misconduct, it is important to understand your position:
- Keep proper records: Document every decision, every transaction, and every communication with beneficiaries. Good records are your best defence against allegations.
- Communicate proactively: Beneficiaries who are kept informed are less likely to suspect impropriety. Provide regular updates on the progress of administration.
- Understand what beneficiaries are entitled to: Residuary beneficiaries are entitled to accounts. Specific beneficiaries (receiving a specific item or sum) generally are not. Don't refuse legitimate requests.
- Seek legal advice early: If a beneficiary raises concerns, obtain advice before responding. A considered response from a solicitor can defuse a situation that an emotional response would escalate.
- Consider judicial advice: The Supreme Court can give directions to an executor about how to administer the estate. If you are uncertain about a decision, applying for judicial advice protects you from later allegations.
- Do not distribute prematurely: Wait at least six months from the grant of probate (12 months in practice, to allow for family provision claims) before distributing. Distributing too early exposes you to personal liability.
Removal of executor — the legal pathway
The Supreme Court has the power to remove an executor. The test is not whether the executor has been guilty of misconduct — it is whether the welfare of the beneficiaries requires removal. The court will consider:
- Whether the executor has acted improperly or in breach of duty
- Whether there is a conflict of interest that cannot be managed
- Whether the executor is unable or unwilling to act
- Whether the relationship between the executor and beneficiaries has broken down to the point where proper administration is impossible
- Whether the welfare of the beneficiaries would be better served by an independent administrator
The statutory provisions differ between NSW and Queensland:
Removal of Executor — New South Wales
Statutory removal power
Section 63 of the Succession Act 2006 (NSW) gives the Supreme Court power to remove an executor and appoint an administrator if the executor "is not suitable to act" or "is unable or unwilling to act." This is a broad discretion — the court is not limited to cases of proven misconduct. Unsuitability can arise from a conflict of interest, a breakdown in the relationship between the executor and beneficiaries, or simply the executor's inability to manage the estate competently.
Inherent jurisdiction
In addition to the statutory power, the Supreme Court of NSW has inherent jurisdiction to remove an executor where the welfare of the beneficiaries requires it. This inherent jurisdiction predates the Succession Act and remains available alongside the statutory power. It is often invoked in cases where the statutory test is met but the circumstances are unusual.
Who can apply?
An application for removal can be made by a beneficiary, a co-executor, a creditor of the estate, or the NSW Trustee & Guardian. In practice, most applications are brought by residuary beneficiaries who have been unable to resolve their concerns through direct communication with the executor.
What happens after removal?
If the court removes an executor, it will appoint a replacement. This may be: another person named in the will (a substitute executor), one of the beneficiaries (if agreed and suitable), the NSW Trustee & Guardian, or an independent solicitor or accountant. The NSW Trustee & Guardian is often appointed where there is no other suitable person available, though it charges fees for its administration services.
Costs in removal applications
Costs are at the discretion of the court. The general principle is that if the executor's own conduct caused the litigation, they may be ordered to pay costs personally — meaning the cost comes out of their own pocket, not the estate. If the removal application was necessary despite the executor having acted reasonably throughout, costs may be paid from the estate. If the application was brought unreasonably by a beneficiary, that beneficiary may be ordered to pay costs.
Judicial advice — an alternative to removal
Section 63 of the Trustee Act 1925 (NSW) allows an executor to apply to the court for an opinion, advice, or direction on any question respecting the management or administration of the estate. This is a protective mechanism: if the executor follows the court's direction, they are protected from later allegations that they acted improperly. Judicial advice applications are often used where the executor is uncertain about a course of action and wants the court's endorsement before proceeding.
Key NSW cases
- Miller v Cameron (1936) 54 CLR 572: The High Court confirmed that the test for removal is the welfare of the beneficiaries, not proof of misconduct.
- Mavrideros v Mack (1998) 45 NSWLR 80: The NSW Court of Appeal considered the circumstances in which a breakdown in the relationship between executor and beneficiaries justifies removal.
- Estate of Crane [2005] NSWSC 110: An example of removal where the executor's conflict of interest (as both executor and creditor) made proper administration impossible.
Probate List
Executor removal applications in NSW are heard in the Probate List of the Equity Division of the Supreme Court. Specialist judges with significant experience in estate disputes hear these matters. Urgent applications — for example, where assets are at risk of dissipation — can be brought on short notice.
Removal of Executor — Queensland
Statutory removal power
Section 96 of the Trusts Act 1973 (QLD) gives the Supreme Court power to remove a trustee (which includes an executor) and appoint a new trustee where the trustee "is unfit to act" or "is incapable of acting." The Queensland test of "unfitness" is arguably narrower than the NSW test of "unsuitability," though in practice the courts in both states apply similar principles focused on the welfare of the beneficiaries.
Inherent jurisdiction
The Supreme Court of Queensland also has inherent jurisdiction to remove an executor grounded in the welfare of beneficiaries. This jurisdiction is consistent with the approach taken in NSW and other Australian jurisdictions.
Section 6 of the Succession Act 1981
Section 6 of the Succession Act 1981 (QLD) gives the court an additional power: where a named executor is unsuitable, the court may pass over that person and grant letters of administration to another person. This is often used at the outset of the administration — before a grant of probate has been made — where it is clear the named executor should not act. It is an alternative to removal after probate has been granted.
Who can apply?
As in NSW, an application for removal can be made by a beneficiary, a co-executor, a creditor, or the Public Trustee of Queensland. Most applications are brought by residuary beneficiaries.
What happens after removal?
If the court removes an executor, it will appoint a replacement. Options include: a substitute executor named in the will, a beneficiary (if agreed and suitable), the Public Trustee of Queensland, or an independent professional. The Public Trustee of Queensland charges fees for its administration services, which are regulated and generally comparable to private trustee fees.
Costs in removal applications
Queensland applies similar costs principles to NSW. If the executor's conduct caused the litigation, they may pay costs personally. If the application was necessary despite reasonable conduct, costs may come from the estate. The court has a broad discretion and will consider the circumstances of each case, including any offers of settlement made before or during the proceedings.
Judicial advice — an alternative to removal
Section 96 of the Trusts Act 1973 (QLD) also allows executors to apply for the court's directions on estate administration questions. As in NSW, following the court's direction provides protection against later allegations. Queensland executors facing difficult decisions or beneficiary disputes should consider judicial advice as a practical alternative to waiting for a removal application to be brought against them.
Key QLD cases
- Re Estate of Crane [2005] QSC 173: The Queensland Supreme Court considered removal where the executor's conflict of interest made proper administration impossible.
- Baldwin v Greenland [2006] QCA 293: The Queensland Court of Appeal examined the test for removal and confirmed the primacy of the welfare of beneficiaries.
- Re McLennan [2018] QSC 140: An example of the court passing over a named executor under s6 of the Succession Act 1981 where the executor was unsuitable due to conflict with beneficiaries.
QCAT jurisdiction note
QCAT does not have jurisdiction to remove an executor. Executor removal applications must be brought in the Supreme Court. However, QCAT does have jurisdiction over enduring power of attorney disputes — which may be relevant if the executor's misconduct is connected to actions taken under a power of attorney before the deceased's death.
Evidence that matters in executor misconduct cases
- The will and grant of probate or letters of administration
- Correspondence between the executor and beneficiaries — including requests for information and the executor's responses
- Bank statements and transaction records for estate accounts — showing when and how estate funds were dealt with
- Records of estate asset sales, transfers, or distributions — including valuations obtained
- The executor's own accounts and records — or the absence of them
- Timeline of estate administration — showing delays or periods of inaction
- Evidence of the executor's personal dealings with estate assets — self-dealing transactions
- Correspondence with third parties — real estate agents, banks, share registries — showing the executor's instructions
- Witness statements from beneficiaries and others affected by the executor's conduct
What to do now — practical next steps
The right next step depends on your situation. Here is a practical guide for both sides.
If you are a concerned beneficiary
Document Your Concerns
Write down what you are concerned about, with dates and details. Gather any correspondence you have with the executor.
Make a Written Request
Send a clear, polite, written request to the executor asking for the specific information or action you want. Keep a copy.
Get Legal Advice
If the executor does not respond — or if the conduct is serious (misappropriation, self-dealing) — obtain legal advice promptly.
Escalate Proportionately
Start with a solicitor's letter. If that fails, consider court orders for accounts or, in serious cases, removal.
Act Before Distribution
If assets are about to be distributed and you have concerns, seek urgent advice. Recovery after distribution is much harder.
If you are an executor facing allegations
Don't Ignore It
Allegations do not go away. Ignoring a beneficiary's concerns makes the situation worse and can be used against you later.
Gather Your Records
Assemble all your records of estate transactions, communications, and decisions. If you do not have them, start documenting now.
Get Legal Advice First
Do not respond to allegations without legal advice. What you say can be used in evidence. A solicitor can craft a response that protects you.
Consider Judicial Advice
If you are uncertain about a decision, apply for the court's direction. This protects you if a beneficiary later challenges the decision.
Communicate Proactively
Keep beneficiaries informed. Regular updates — even brief ones — reduce suspicion and can prevent disputes from escalating.
Executor misconduct concerns?
Whether you are a beneficiary concerned about an executor's conduct, or an executor facing allegations — we can advise on your legal position, the strength of the evidence, and the available remedies under NSW or Queensland law.
Related services
Executor misconduct often overlaps with other areas of estate dispute law. Depending on your circumstances, these related pages may also be relevant:
Beneficiary Rights
What beneficiaries can ask about, what they cannot control, and when court action is needed. Understanding your rights is the first step before alleging misconduct.
Learn about beneficiary rights →Estate Fraud
Where executor misconduct crosses into fraud — forged wills, concealed assets, falsified accounts. Criminal as well as civil consequences.
Explore estate fraud →Elder Financial Abuse
Financial abuse of the deceased before death, often by the same person who later becomes executor. Powers of attorney, undue influence, and inter vivos transfers.
Explore elder financial abuse →Probate Fraud
Fraud in the probate process itself — false statements in probate applications, concealment of assets from the court, and forged grants.
Explore probate fraud →Undue Influence in Wills
Where the executor obtained their appointment through undue influence over the will-maker. Challenging the will and the appointment simultaneously.
Explore undue influence →Urgent Estate Protection
Where assets are at immediate risk — the executor is dissipating funds or transferring property. Urgent court applications for freezing orders and injunctions.
Explore urgent protection →Frequently asked questions
There is no fixed legal deadline, but an executor must act without unreasonable delay. In NSW, probate should generally be applied for within six months of death — the court expects an explanation for longer delays. A straightforward estate might be fully administered within 12 months. Complex estates — with businesses, multiple properties, or disputes — can take longer. An executor who does nothing for many months without explanation, and who fails to communicate with beneficiaries, is likely in breach of duty. Beneficiaries can seek court orders to compel progress or, in serious cases, to remove the executor.
Yes. The court does not require proof of misconduct to remove an executor — the test is the welfare of the beneficiaries. A conflict of interest that cannot be adequately managed may justify removal even if the executor has acted in good faith. For example, an executor who is also a creditor of the estate, or who is in a dispute with other beneficiaries about the interpretation of the will, may be removed if the conflict prevents impartial administration. However, the fact that the executor is also a beneficiary is not itself a conflict — that is common and expected.
This is one of the most serious forms of executor misconduct. If the executor has misappropriated estate assets, the court can: order the executor to return the assets or pay their value to the estate; remove the executor and appoint an independent administrator; order the executor to pay compensation for losses caused; and in serious cases, refer the matter for criminal investigation. The executor may also be personally liable for the costs of any proceedings caused by their misconduct. If you suspect misappropriation, urgent advice is critical — assets can be dissipated or hidden.
Yes. Being named as executor in a will does not oblige you to act. You can renounce the appointment (formally decline) before you take any steps in the administration. This is done by filing a renunciation with the Supreme Court. Once you have intermeddled in the estate — for example, by taking possession of assets or paying debts — you cannot renounce and must seek the court's permission to step down. If you are considering renouncing, do so before taking any action in the estate. If you have already started, seek legal advice about applying to the court for removal.
Not without authority. In both NSW and Queensland, an executor is not automatically entitled to commission. Commission may be authorised by: a provision in the will; the unanimous consent of all adult beneficiaries with full capacity; or a court order. If the executor pays themselves commission without authority, this is self-dealing — a breach of fiduciary duty. The court can order the executor to repay the commission and, in serious cases, may remove the executor. Executors who wish to claim commission should seek legal advice and, if beneficiaries do not consent, apply to the court for approval. The court will consider factors including the size of the estate, the complexity of the administration, the skill and effort required, and the executor's conduct throughout.
An executor is appointed by a valid will to administer the estate. An administrator is appointed by the court to administer an estate where there is no will (intestacy), where the will does not name an executor, where the named executor has died or is unwilling to act, or where the court has removed the executor. In practice, the duties of an executor and an administrator are very similar — both are fiduciaries who must collect assets, pay debts, and distribute to beneficiaries. The key difference is the source of authority: the will (for executors) or the court (for administrators). When the court removes an executor and appoints an independent administrator — such as the NSW Trustee & Guardian or the Public Trustee of Queensland — that person becomes the administrator of the estate.
The cost of an executor removal application varies significantly depending on whether the application is contested. An uncontested removal — where the executor agrees to step down or does not oppose the application — may cost several thousand dollars in legal fees. A contested removal — where the executor opposes the application and the matter proceeds to a hearing — can cost tens of thousands of dollars or more. The court has discretion to order that costs be paid from the estate, by the executor personally, or by the applicant. If the executor's misconduct caused the application, they are at significant risk of a personal costs order. If the application was brought unreasonably, the applicant may bear the costs. Legal advice on the costs risks specific to your case is essential before commencing proceedings.
Yes. If the executor is about to take action that would cause irreparable harm — such as selling a unique asset at undervalue, distributing assets to third parties, or dissipating estate funds — the Supreme Court can grant an urgent injunction (freezing order) to stop the executor pending a full hearing. Urgent applications can be brought on short notice — sometimes within hours in extreme cases. The applicant must demonstrate a serious question to be tried and that the balance of convenience favours granting the injunction. If you believe estate assets are at immediate risk, you should seek urgent legal advice without delay. The longer you wait, the harder it becomes to obtain urgent relief.