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Who are the Executors?

January 13, 2016 By

Is it clear?
Sometimes the description, or the position of appointment, of an executor is not clear.
Legal advice is required to ensure the correct executors are obtaining the grant and on occasions, where true uncertainty exists, an application to the Supreme Court is required for advice and directions as to who may be entitled to obtain the grant of Probate.

Conflict between executors?
Where more than 1 executor is appointed, all are entitled to act. Unless the Will specifies it, executors do not act as a majority.
If conflict exists between named executors significant delay and financial loss may arise in addition to the additional stress it will cause.

A sensible resolution to the conflict without the need to file Court proceedings is always preferred. Objective negotiation and third party mediation are always suggested at first instance.
If conflict continues, an application to the Supreme Court can be made seeking guidance, directions and, in some instances, orders to pass over a named executor to ensure further financial wastage does not occur to the estate.

What if the executor dies?
Does the Will appoint another executor in substitution to the now deceased executor?
Is another grant of Probate required for the substituted or subsequently named executor?

What if a named executor is incapacitated?
If the Will permits another executor in substitution the incapacitated executor may be passed over and a grant of Probate made to the executor appointed in lower priority.
If the Will does not permit another executor in substitution the Supreme Court is required for another to apply for, and receive, a grant of Probate.
Would all beneficiaries agree with this action? Does the Public Trustee have to be involved?

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  • Home
  • About
  • Focus
    • Estate Planning
      • Probate
      • Estate Administration
      • Inheritance Claims
    • SuperAnnuation & Death Benefits
    • General Commercial Drafting & Transactions
    • Family Law
      • Family Law Property Settlement
      • Family Law – Childrens Matters
    • Conveyancing and Form 1 Preparation
  • Team
    • Greg Welden
    • Jason Coluccio
    • Maddalena Romano
    • Joanna Diamantopoulos
    • Natalie Rossi
    • Anna Arace
  • News
  • Contact