Applying to remove or replace an executor
Executor removal is discretionary, granted where the executor is acting in conflict, has caused loss, is incapable, is improperly delaying, or where removal is otherwise necessary for due administration. The court weighs the testator's choice against the beneficiaries' interests.
This is an 8-step workflow for applying to the NSW Supreme Court under s 77 of the Probate and Administration Act 1898 to remove or replace an executor who cannot or will not properly administer the estate.
Before you start
- Grant of probate or letters of administration already made
- Evidence of the executor's conduct justifying removal
- Consent or availability of a proposed replacement administrator
- Standing as a beneficiary, co-executor, or creditor
The workflow
Establish standing and statutory basis
Confirm the applicant has standing (beneficiary, co-executor, creditor) and identify the statutory pathway — s 77 Probate and Administration Act 1898 (NSW) or the court's inherent jurisdiction.
Gather evidence of executor conduct
Document the conduct justifying removal — failure to account, improper self-dealing, conflict, incapacity, undue delay, or loss to the estate. Include correspondence and accounts.
Seek accounts first
Before removal, consider an order for accounts under s 85 of the Probate and Administration Act. An accounting often resolves the dispute or clarifies removal grounds.
Identify a proposed replacement
The court requires a proposed replacement administrator. Obtain consent from the proposed administrator and confirm their fitness (including creditor status and conflicts).
Draft the summons and supporting affidavit
Draft the summons seeking removal and substitution. Prepare a detailed affidavit with exhibits. Plead the conduct and the necessity for due administration.
File and serve
File in the NSW Supreme Court Probate Division. Serve the executor, all beneficiaries, and any creditors with an interest. Use the Probate List practice direction.
Attend directions and hearing
Matters are often listed before the Probate List Judge. Evidence is typically on affidavit with limited cross-examination. Focus submissions on due administration.
Implement the order
On removal, the replacement administrator applies for letters of administration with the will annexed. Transfer estate accounts, assets, and files. Seek delivery-up orders if needed.
What you will have at the end
Either the executor removed and a replacement appointed, or the executor required to account and improve administration — with costs typically paid out of the estate or personally against the executor.
Common issues
- Insufficient evidence of actual (not potential) conflict or loss
- No proposed replacement ready, delaying the court's intervention
- Applicants with weak standing (non-beneficiary claimants)
- Overlooking the accounting pathway which would resolve the underlying dispute
- Costs orders personally against the applicant where removal is not made out
Run this workflow on a real matter
Quillio drafts executor removal summonses with the s 77 factors mapped to the conduct evidence and prepares affidavit outlines. See /practice-areas/wills-estates-lawyers.
This workflow is a general guide. Executor removal applications carry costs risk — assess the evidence rigorously before filing.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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