Estate Executor’s Guide – [Part 3] Court Proceedings by and Against Executors and Administrators

Estate Executor Guide Four Part Series – Part 3

In this third part of the Estate Executor’s Guide, we explore scenarios where legal proceedings may be required or initiated. Whether there’s no valid will, disputes arise about the will’s authenticity, or there are concerns about the executor’s conduct, courts can intervene to ensure the estate is administered fairly, lawfully, and according to the will-maker’s intentions.

No Will – Applying for Letters of Administration
When someone dies without leaving a valid will (intestate), the estate is divided according to intestacy rules. In Queensland, for example, a spouse typically receives the first $150,000 plus a portion of the remaining estate, and the children share the rest. Without a will, a spouse has priority to apply to the Supreme Court for “Letters of Administration,” enabling them to manage and distribute the estate’s assets. If there is no spouse, a child, parent, or more distant relative may apply. Even a creditor can apply if no family member steps forward.

The appointed administrator carries out duties similar to an executor, collecting assets, paying debts, and distributing the remainder according to intestacy laws. Children or other eligible dependants may also seek a greater share through a “Family Provision” application if they believe the distribution doesn’t adequately provide for their needs.

A Will but No Executor – Letters of Administration with the Will Annexed
If the will names executors who have died or are unwilling to act, a beneficiary or even a creditor can apply for Letters of Administration “with the will annexed.” This gives them the authority to carry out the will’s instructions. The same order of priority to apply as in intestacy generally applies here.

Invalid or Informal Wills – Court Approval Under Section 18 of the Succession Act
Sometimes a will is incorrectly signed, unsigned, or created in an informal manner (e.g., a rough draft, computer file, text message, or video recording). The court can validate such documents if there is evidence the deceased intended it to represent their final wishes.

• Incorrectly Signed Wills: If there was a genuine attempt to properly sign it, and no conflicting evidence, the court may approve the will.
• Unsigned Wills or Informal Wills: If evidence suggests the will-maker intended the unsigned or informal document to be their final will, the court can validate it. Applications are made under section 18 of the Succession Act, and all affected parties must be served notice.

Probate of the Will – Application for Probate
Probate is the Supreme Court’s confirmation that a will is valid and that the executor can lawfully administer the estate. Without probate, institutions may refuse to release funds or transfer assets, especially for larger balances. Obtaining probate involves:

• Advertising the intended application
• Waiting a statutory period (commonly 14 days post-advertisement)
• Lodging an application supported by an affidavit, the death certificate, the original will, and details of the estate

Once granted, probate protects the executor by confirming the will’s authenticity. If a later will surfaces, the executor who acted in good faith under the earlier probate generally isn’t held personally liable.

Challenging a Will’s Authenticity – “Solemn Form” Pronouncement
If doubts arise about the will’s legitimacy—such as the will-maker’s mental capacity or the authenticity of the signature—an executor or interested party may ask the court to decide the issue.

• Medical records, witness statements, and expert opinions may be presented to the court.
• If the court confirms the will’s validity in “solemn form,” it becomes difficult to challenge later unless fraud or a newer will is discovered.

Inappropriate Executor – Removal or “Passing Over”
A beneficiary or other interested party can ask the court to “pass over” a named executor if they believe the executor is unsuitable (e.g., due to ill-health, conflict of interest, misconduct). This must be done before probate is granted. After probate, the court can remove an executor or trustee if they prove incapable or unwilling to perform their duties properly.

Executor’s Actions Under Scrutiny – Review and Remedies
If beneficiaries are dissatisfied with an executor’s actions—say they delay unduly or mismanage assets—they can seek a court review. Courts can order an executor to provide accounts, justify decisions, or even step down. Executors must handle conflicts professionally, resolve differences, and avoid chronic hostility that could harm the estate’s interests.

Delays in Administration – Removal for Inactivity
An executor who neglects their responsibilities or fails to progress the estate administration could face removal by court order. Beneficiaries should receive regular updates, and unnecessary delays can justify the executor’s removal.

By understanding the range of legal proceedings that can arise—whether for granting Letters of Administration, validating informal wills, obtaining probate, or challenging an executor’s conduct—you’ll be better prepared to handle unexpected complications. Courts serve as a safeguard, ensuring estates are administered lawfully, fairly, and in keeping with the will-maker’s intentions.

You have completed Part 3 of the Estate Executor Guide Four Part Series

• Go back to Part 1 – Estate Executor’s Guide – Getting Started
• Go back to Part 2 – Estate Executor’s Guide – Administering The Estate
• Go to Part 4 – Estate Executor’s Guide – Long term trustees

If at any time you need legal involvement in your administration, please call us on 1300 580 413.