When an executor is unwilling or unable to act

There are different reasons why an executor may be unable to act. For example:

The executor doesn't want to act

A will may name one or more people as executors (called 'instituted executors') as well as backup executors (called 'substitute executors').

If the instituted executor named in the will does not want to act they can file a Renunciation of Probate form with the Supreme Court of NSW.

Before renouncing the executor should check the wording of the will in order to make sure that another person is entitled to take their place.

The will may have:

• only one instituted executor named, with no substitutes
• multiple instituted executors, with no substitutes
• one or more instituted executors with substitutes.

If there are no other instituted or substitute executors, your solicitor, your accountant or the NSW Trustee & Guardian may be appointed as the executor. You should get legal advice about this situation.

If the executor is one of multiple instituted executors then the remaining instituted executor(s) can usually apply for probate.

If all the named executors renounce their right to apply for a grant, a beneficiary can apply for letters of administration with the will annexed.  

For more information, see Applying for letters of administration.

For further information, see Complex Probate Proceedings on the Supreme Court of NSW website.

A Renunciation of Probate can't be filed after probate has been granted. 

Step by step guide: How to apply for a renunciation of probate

The executor has died

If there are multiple executors named in the will and one of the executors dies, the other executor can apply for a grant of probate. The executor will need to explain in the Summons and the Affidavit of Executor that the other executor has died and attach a certified copy of the death certificate.

If the sole executor has died, a beneficiary can apply for a grant of letters of administration with the will annexed.

For more information, see Applying for letters of administration. 

The executor is a minor

If the sole executor is a minor (under 18 years of age), the court may grant administration with the will annexed to the guardian of the minor or to another responsible person appointed by the court, until the minor reaches 18 years of age.

If one of the executors named in a will is a minor, the court may grant probate to the other executors with leave (permission) to the minor to apply for probate upon turning 18 years of age.

 If the sole executor or one of the executors is a minor, you should get legal advice. 

The executor has lost capacity

If the sole executor is mentally or physically incapable of managing his or her own affairs due to a disability, the court may make a grant of administration with the will annexed to another person depending on whether the disability is permanent or temporary.

If there are other executors appointed by the will, the court may grant probate to the other executors. The executors will need to explain in the Affidavit of Executor why one of the executors is unable to act and provide medical evidence.

If the executor is mentally or physically incapable, you should get legal advice.

The executor lives outside of NSW

If the executor lives outside of NSW they can appoint an attorney under a Power of Attorney or get a solicitor who lives in NSW to apply for a grant of probate on their behalf.