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Do you need help with Probate?

Our expert legal team is ready to take your call

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Issues with Executors

Issues with executors may arise if there are any disagreements in their ability to carry out their duties in the administration of an estate. The role of an executor (or administrator) is often open for dispute, whether between co-executors or between executors and beneficiaries.

Executor's duties

Executors are appointed to administer, preserve and protect the estate of a deceased person on behalf of the beneficiaries. The same applies for administrators of an estate. These are positions of trust and confidence. Under some circumstances there may be issues with executors and administrators with how they exercise their discretion in carrying out their duties. There are various steps that can be taken to dispute an executor's role, which can result in the removal of the executor.

Removing an Executor

The Administration and Probate Act 1958 (Vic) provides that a Court may order the termination of an executor or administrator where:

  1. They remain out of Victoria for more than two years;
  2. They desire to remove themselves as executor or administrator; or
  3. They refuse, or are otherwise unfit or incapable to be the executor or administrator of the estate.

An executor or administrator may be deemed unfit in the following situations (among others):

  • Maladministration (i.e. undue delay, making of unauthorised investments or failure to observe provisions or direction in a Will);
  • Misappropriation (i.e. dishonestly using estate assets or funds for their own private use); or
  • Conflict of interest (i.e. making a profit in their administration).

Unworkable relationships between co-executors is another common example for the removal of executors.

It is important to note that a Court will not lightly set aside the Willmaker's wishes that a particular person administer their estate. Removal is only likely to occur if the Court finds that significant harm would be done to the interests of the beneficiaries, should the executor or administrator not be removed.

In considering whether to remove an executor or administrator, the Court has a wide discretion to consider any manner of factors effecting the beneficiaries and the estate at large.

How can I prevent issues with Executors of my Estate?

It is impossible to foreshadow whether there will be any issues with your executors and the administration of your estate. However, there are some simple ways in which you can attempt to reduce the likelihood of a dispute after your death:

  • Appoint multiple executors by appointing multiple executors, they are able to keep a check and balance on their co-executor's actions, thus reducing the potential risk of misappropriation;
  • Appoint people you trust sometimes the most obvious candidate to act as your executor may not be the most appropriate. It is essential to appoint person(s) you trust and believe can competently handle your estate; and
  • Appoint a professional executor by appointing a professional executor (i.e. a law firm or professional trustee), this can have the effect of removing any personal bias or pre-existing animosity between executors and/or beneficiaries.

How can Sharrock Pitman Legal assist if I have issues with an Executor?

Here at Sharrock Pitman Legal we offer a broad range of legal services to suit your various needs. If you would like to speak with one of our team members about an issue you are experiencing with an executor or administrator, as an executor or administrator, or if you have received a complaint from a beneficiary, please feel free to call Mitchell Zadow on (03) 8561 3318 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

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For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

More on

Probate & Estates

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.