What Happens if the Executor Won't Apply for Probate?
The executor is the person appointed by the deceased’s will to manage the estate and carry out the deceased’s wishes. To carry out these duties an executor is required to apply for a grant of probate in the Supreme Court of NSW.
If the executor won’t apply for probate, as a beneficiary you have two options:
- Apply to the Supreme Court for letters of administration under section 75 of the Probate and Administration Act 1898;
- Serve a notice on the executor requiring them to apply for probate, and if the executor does not comply, apply to the Supreme Court for letters of administration under section 69 of the Probate and Administration Act 1898.
Letters of Administration
A grant of letters of administration allows the administrator to manage and distribute the estate. Ordinarily, letters of administration are sought where the deceased died without a will, and a grant of probate is sought if the deceased died with a will. However, if there is no executor, or the executor is unwilling to act, a beneficiary may seek letters of administration with the will annexed.
Relevantly, per section 75 of the Probate and Administration Act 1898, if the executor neglects or refuses to obtain probate or renounce their role as executor within three months from the death of the testator, a beneficiary may apply for letters of administration with the will annexed.
Notice to the Executors
A beneficiary may serve a notice to apply for probate on the executor. The notice requires the executor to file for probate within 14 days after receiving the notice.
Under section 69 of the Probate and Administration Act 1898, if the executor does not comply with a notice their rights as executor cease, and the beneficiary may apply for letters of administration with the will annexed to the application.
If a notice is served on the executor this amounts to implied acceptance of their competence to administer the estate. Thus, if you have any doubts regarding the competence of the executor it may be preferable to seek letters of administration under section 75.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.