An executor who is named in a will may not be able to apply for probate if they are:
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
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 named in the will.
If the executor is mentally or physically incapable, you should get
In some circumstances, an executor may be unwilling or unable to act.
The spouse or next of kin of the deceased may apply for a grant of administration with the will annexed if the executor:
If two executors are appointed and one executor is unwilling or unable to act, the other appointed executor may still apply for probate. For example, if two executors were appointed by a will and one has died, then the surviving executor will need to annex (attach) the deceased executor's death certificate to their affidavit.
If you have been named as an executor in the deceased's will and you do not want to act, you can file a renunciation of probate with the Supreme Court of NSW.
Instructions for filling out a Renunciation of Probate
Sample Renunciation of Probate (Form 123)
If an executor is unwilling or unable to act, you should get
An executor who lives outside of NSW is entitled to apply for probate, however another person may apply for a grant of letters of administration if there are concerns that the executor may delay the process.
If the executor appoints an attorney under a Power of Attorney, the court may grant administration with the will annexed.
If you (or one of the executors) live outside of NSW, you should get