I Don’t Trust the Executor (NSW): What Beneficiaries Can Do

Choosing the right executor is one of the most critical decisions when making a will in New South Wales. The executor must be someone the testator trusts completely to administer the deceased estate with honesty, care, and diligence. Ideally, this person should also be seen as fair and reliable by family members and other beneficiaries.

After the testator passes away, the executor works closely with the deceased’s family and beneficiaries. However, conflicts often arise when beneficiaries lose confidence in the executor. Common concerns include poor communication, unexplained delays, or suspected self-interest.

At Evans Wills and Estates Lawyers, we frequently assist clients who ask: “What can I do if I don’t trust the executor of a will in NSW?” This guide explains beneficiary rights, signs of executor misconduct, the fiduciary duties involved, and the process for removing an executor in New South Wales.

Beneficiary Rights When You Don’t Trust the Executor

As a beneficiary under a will in NSW, you have important legal protections under the Succession Act 2006 (NSW) and the Probate and Administration Act 1898 (NSW). You are not powerless — you can hold the executor accountable for the proper administration of the estate.

You are entitled to:

• Confirmation of whether you are named as a beneficiary in the will

• Clear details about the nature and value of your bequest or share

• Information on the full extent and value of the deceased estate (assets and liabilities)

• A reasonable estimate of when you can expect to receive your inheritance

• Regular updates on any delays, legal challenges to the will, family provision claims, or other issues that could affect your entitlement

  
  

If these rights are not being met, it may indicate broader problems with how the estate is being handled.

The Fiduciary Duty of an Executor in NSW

An executor holds a position of significant trust. They owe a strict fiduciary duty to act solely in the best interests of the estate and all beneficiaries, not their own. This includes preserving assets, paying debts and taxes, and distributing the estate according to the will’s terms.

It is common for beneficiaries to worry when distributions seem slow. In New South Wales:

• Executors are strongly advised to wait at least 6 months from the date of death before distributing assets. This allows time for creditors and potential family provision claims (which can be made up to 12 months after death).

• The “executor’s year” is a general guideline — beneficiaries should usually expect to receive their inheritance within about 12 months of the testator’s death, unless the will states otherwise or there are valid complications.

  
  

You may have reasonable grounds to question the executor’s conduct if they:

• Fail to communicate with beneficiaries in a timely or responsive manner

• Cause unnecessary or excessive delays in administering or distributing the estate

• Do not provide proper accounts or financial records of estate assets and transactions

• Prioritise their own interests above those of the estate or beneficiaries

• Purchase estate assets themselves or sell them to friends or associates below market value

• Make unauthorised profits from their role (other than a reasonable executor’s commission, where allowed)

• Delegate their responsibilities without proper authority

• Fail to treat all beneficiaries impartially and fairly

• Manage or invest estate funds imprudently

• Ignore specific instructions in the will

• Keep inadequate or incomplete financial records

  
  

These actions can constitute a breach of fiduciary duty and expose the executor to personal liability.

How to Remove an Executor in NSW

An executor controls valuable assets and funds, so serious mismanagement or misconduct carries real risks. If there is clear evidence of breaches, beneficiaries should act promptly to protect the estate.

The Supreme Court of New South Wales has the power to remove an executor. This is typically achieved by revoking the existing Grant of Probate and issuing a new grant to a suitable replacement administrator. In uncontested cases, the Registrar may deal with the application in chambers (without a full hearing).

Important note: The Court does not remove an executor lightly. Mere personal distrust or family tension is not enough. You must provide compelling evidence of misconduct, neglect, incompetence, conflict of interest, or failure to perform duties.

Common grounds for successful removal include prolonged unexplained delays, failure to account for assets, self-dealing, or acting against the interests of the beneficiaries.

What Should You Do If You Don’t Trust the Executor?

1. Stay calm and measured — document all concerns, dates of delayed communications, and any red flags.

2. Understand your rights and the executor’s legal duties.

3. Request information and accounts from the executor in writing.

4. Seek specialist legal advice early.

   
   

The most effective step is to engage an experienced wills and estates lawyer. At Evans Wills and Estates Lawyers, we can:

• Review the estate administration and your concerns

• Communicate directly with the executor or their lawyers on your behalf

• Demand proper accounts and updates

• Advise whether there are strong grounds to apply for removal of the executor

• Represent you in Supreme Court proceedings if needed

  
  

Early intervention can often resolve issues without going to court and help ensure you receive your rightful inheritance without further delay.

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Frequently Asked Questions:

How long does an executor have to distribute an estate in NSW?

Generally, beneficiaries can expect distribution within 12 months (“the executor’s year”), though the estate cannot usually be fully distributed before 6 months to allow for claims.

Can a beneficiary force an executor to distribute the estate?

Yes — if the executor unreasonably delays distribution after the executor’s year without justification, a beneficiary can apply to the Supreme Court for orders, including removal.

What are the consequences if an executor breaches their fiduciary duty?

They may face personal liability for losses to the estate, be ordered to repay funds, and in serious cases, be removed by the Court.

Do I need a lawyer to remove an executor in NSW?

While not strictly required, having experienced legal representation significantly improves your chances of success and ensures the process is handled efficiently.

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Evans Wills and Estates Lawyers — Specialists in Wills, Probate, Estate Administration, and Contested Estates across New South Wales.

If you are a beneficiary concerned about how an estate is being handled, or you suspect the executor is not acting properly, contact our compassionate and experienced team today. We provide clear, practical advice tailored to your situation and can help protect your inheritance rights.

Call us or send an enquiry for a confidential discussion.