Updated 27 October 2026
CM Law's Ultimate 50 List - Probate Problem #20: How Do Beneficiaries Challenge an Executor?
CM Lawyers wills and estates services
Beneficiaries in NSW can challenge an executor who fails to account for estate money, mishandles assets or obstructs administration. Depending on the problem, the response may be a request for information, an application for accounts or court proceedings seeking replacement. Removal is a serious remedy requiring evidence and an appropriate legal basis.
Start by identifying what has happened and what would protect the estate. A dispute about an executor’s conduct is different from challenging the validity of the will or seeking additional provision from the estate. Each requires its own legal assessment.
What an executor must account for
An executor must collect and protect estate assets, address debts and expenses, and distribute the balance according to the will and the law. The Law Society of NSW explains these responsibilities, including the distribution report showing assets realised and debts paid. Estate funds should be kept separate from the executor’s personal finances.
The Supreme Court’s guidance on probate accounts confirms that executors must keep records and report to beneficiaries. Most estates do not require accounts to be formally filed or approved by the Court. However, a beneficiary can seek orders requiring accounts to be verified and filed, or passed, meaning reviewed by the Court. A request should identify the missing information, such as rental receipts, sale proceeds or unexplained payments.
When a delay needs explanation
The Supreme Court’s guidance on complex probate matters says that an uncomplicated estate is expected to be fully administered within a year of death. This is an expectation, not a universal deadline automatically entitling beneficiaries to payment or the executor’s removal.
Property sales, disputed debts, tax work or litigation may explain a longer administration. Ask what remains outstanding, what action has been taken and when the next update will be provided. Repeated silence or inactivity needs closer examination. Equally, an executor should not distribute money prematurely merely to satisfy demands. The practical question is whether the delay has a sound explanation and whether administration is progressing.
When the Court may replace an executor
The Supreme Court considers the proper administration of the estate, the interests of creditors and beneficiaries, and the deceased’s choice of executor. In Estate Wight; Wight v Robinson [2013] NSWSC 1229, the Court explained that it does not lightly override that choice. A beneficiary’s preference for another person is insufficient by itself.
Relevant concerns can include unexplained use of money, serious failures to keep records, incapacity or a conflict that obstructs administration. Being both executor and beneficiary does not automatically disqualify someone. Nor does an unpleasant family relationship automatically establish grounds for removal. Wight illustrates that a breakdown preventing administration can justify intervention even without a finding of misconduct; the Court there approved agreed replacement orders.
Practical steps for beneficiaries
Collect the will, any grant of probate, correspondence, available accounts and documents supporting the concern. Prepare a dated chronology. For each disputed transaction, record the amount, the explanation given and the document that appears inconsistent with it. Separate what you know from what you suspect, and use records obtained lawfully.
Write a focused request for an explanation and relevant supporting records. Give a reasonable response period suited to the urgency. A solicitor can help assess the reply and propose a timetable, independent accounting review or mediation. This creates a clearer basis for deciding whether proceedings are proportionate.
If you question a property sale, ask for the valuation, sale advice and settlement statement. If expenses are disputed, request invoices and proof of payment. A lower sale price alone does not explain whether the executor breached a duty; the instructions, market evidence and decision-making process matter.
Obtain advice from your own lawyer. The executor’s solicitor is not automatically your solicitor. The NSW Legal Services Commissioner’s guidance also explains that the Commissioner cannot remove an executor, including a solicitor executor, or compel the executor’s lawyer to finalise distribution. A professional complaint cannot replace necessary estate proceedings.
Choosing the correct court procedure
The procedure depends on whether probate has been granted and the orders required. Before a grant, a lawyer may consider passing over an unsuitable executor or the procedures available where an executor fails to apply. After a grant, removal ordinarily requires revocation of that grant and arrangements for a suitable replacement. Renunciation before a grant is different: an executor cannot simply use that procedure to resign after obtaining probate.
The official NSW civil forms directory identifies Forms 4A and 4B as summons forms, Form 40 as an affidavit and Form 20 as a notice of motion. Form 123 concerns renunciation of probate. These are not a universal filing checklist. A lawyer should check the correct originating process, evidence, service requirements and proposed orders for the particular dispute.
An accounts application also has limits. The Court explains that ownership and valuation disputes may require a separate administration suit. Identify the remedy needed before choosing forms.
Urgent concerns about estate money
If money appears to be disappearing or an asset sale threatens the estate, obtain urgent advice. Preserve statements and correspondence, and identify the transaction requiring attention. A lawyer can assess an application for interim protection, including an injunction where justified.
The Judicial Commission’s guidance on interim orders explains that an applicant must establish an adequate legal and evidentiary basis; the Court also weighs the practical consequences of granting or refusing relief. An undertaking to compensate for loss caused by an injunction is generally required. A freeze is not automatic merely because fraud is alleged.
A probate caveat prevents a grant while it remains effective. It does not itself freeze estate bank accounts or resolve misconduct after probate has been granted.
A verified NSW executor removal case
In Stegnjaic v Stegnjaic [2019] NSWSC 1208, a father left his estate equally to two sons and appointed one as executor, with broad powers to postpone sale and distribution. The other son challenged the administration.
The Court found that the executor had mixed estate and personal money, received estate money without justification and failed to keep adequate expenditure records. He had also omitted his brother as a beneficiary in the probate affidavit despite knowing of his equal entitlement. The executor was removed and an independent administrator appointed.
In the separate costs judgment [2019] NSWSC 1213, the executor was ordered personally to pay 70 per cent of his brother’s costs on the ordinary basis, without reimbursement from the estate. He could not recover his own defence costs from the estate. This percentage was a case-specific costs order, not a standard recovery rate.
The case shows the value of tracing transactions and obtaining supporting documents. It does not establish that every accounting error requires removal or that every successful beneficiary will recover all legal fees.
Managing costs and the replacement
Ask for advice on likely costs, the estate’s value and whether a narrower order could resolve the problem. Costs remain discretionary; proper administration expenses and litigation driven by misconduct or personal interests can receive different treatment. Do not assume the estate will pay every party’s bills.
Replacement also needs planning. Consider the proposed administrator’s independence, consent and fees, and the transfer of records, funds and outstanding work. Removing an executor does not itself recover missing assets. Any claim for repayment or compensation needs appropriate supporting evidence and orders.
Speak with Christine about executor concerns
Bring your documents and a short chronology to Christine Manolakos and the CM Lawyers team. We can assess whether the concern calls for an information request, negotiations, an accounts application or removal proceedings. Explore our estate administration and probate dispute services, and have the proposed steps checked by a lawyer before acting. Request a staged estimate covering initial advice, negotiations and any court application, so the likely expense can be compared with the practical benefit sought.
General information about NSW estate administration only. Have a lawyer check the facts, applicable law and proposed procedure before acting. Outcomes depend on the circumstances of each estate.
Key resources
