What Happens If an Executor Does Not Follow a Will

When a person passes away, their Will provides instructions about how they want their assets and belongings to be distributed. The executor appointed under the Will is responsible for carrying out those wishes and ensuring the estate is properly administered.

However, problems can arise when an executor does not follow the Will, fails to perform their duties, delays the administration process or makes decisions that are not in the best interests of the estate.

For beneficiaries, executor disputes can be frustrating and stressful, particularly when they are waiting for an inheritance or have concerns about how estate assets are being managed.

In Victoria, executors have important legal obligations under succession law. They must act honestly, administer the estate properly and comply with the requirements of legislation such as the Administration and Probate Act 1958 (Vic).

This article explains what happens when an executor fails to carry out a Will, what rights beneficiaries have, and what legal options may be available to resolve executor disputes.

What Does an Executor Do After Someone Dies?

An executor is the person appointed in a Will to manage the deceased person’s estate.

Their role is not simply to distribute assets. An executor is responsible for completing a range of legal and administrative tasks before beneficiaries can receive their inheritance.

An executor’s responsibilities may include:

• Locating and securing the deceased’s assets
• Arranging valuations where required
• Identifying debts and liabilities
• Applying for a Grant of Probate through the Supreme Court of Victoria
• Paying outstanding debts and estate expenses
• Managing estate property
• Keeping accurate records
• Communicating with beneficiaries
• Distributing assets according to the Will

The Supreme Court of Victoria Probate Office oversees applications for probate and other estate administration matters in Victoria. Probate provides the executor with formal authority to deal with certain assets and administer the estate.

Executors also have fiduciary duties, meaning they must act in the interests of the estate and beneficiaries rather than using their position for personal advantage.

Can an Executor Ignore the Instructions in a Will?

No. An executor cannot simply disregard the instructions contained in a valid Will.

A Will represents the deceased person’s wishes regarding how their estate should be distributed. Unless the Will is successfully challenged or there are legal claims against the estate, the executor must follow its terms.

An executor generally cannot:

• Change who receives assets under the Will
• Give a beneficiary’s inheritance to someone else
• Refuse to distribute assets because they disagree with the Will
• Favour one beneficiary over another without legal justification
• Use estate assets for personal benefit

For example, if a Will leaves a specific property, investment or personal item to a beneficiary, the executor must deal with that asset according to the Will and the law.

However, an executor may need to delay distribution where there are legitimate reasons, such as outstanding debts, tax obligations, disputes or claims against the estate.

What Are the Signs an Executor Is Not Properly Administering an Estate?

Not every delay means an executor has breached their obligations. Some estates take time to finalise due to complex assets, property sales or legal issues.

However, beneficiaries may have concerns where an executor:

1. Fails to provide information about the estate

Beneficiaries may reasonably expect updates about the progress of estate administration.

While beneficiaries do not control the estate, executors should maintain appropriate records and properly manage estate information.

Concerns may arise where an executor refuses to provide information about:

• Estate assets
• Estate liabilities
• Probate applications
• Estate expenses
• Property sales
• Expected distribution timeframes

If an executor refuses to communicate or provide reasonable updates, beneficiaries may need legal advice about their rights and available options.

2. Delays the administration of the estate without reason

Executors should take reasonable steps to progress the estate.

Although there is no single timeframe that applies to every estate, unnecessary delays can create problems for beneficiaries and may raise concerns about whether the executor is properly carrying out their role.

3. Fails to account for estate assets

Executors must identify and protect estate assets.

Issues may arise where:

• Assets appear to be missing
• Estate money has been spent without explanation
• Property has been sold without proper records
• Beneficiaries cannot understand how funds have been managed

Executors may be required to provide an account of estate transactions to demonstrate that the estate has been properly administered.

What Rights Do Beneficiaries Have If an Executor Is Not Doing Their Job?

Beneficiaries have important rights, even though they do not personally manage the estate.

Depending on the circumstances, beneficiaries may be able to seek information about:

• The contents of the Will
• The progress of probate
• Estate assets and liabilities
• Administration expenses
• The expected timeframe for distribution

The Law Institute of Victoria recognises that disputes involving estates can arise where beneficiaries are concerned about how an executor is managing their responsibilities.

Where communication breaks down, obtaining legal advice early can help identify whether the issue can be resolved through discussion or whether further action may be required.

Can a Beneficiary Force an Executor to Act?

In some circumstances, yes.

If an executor refuses to administer an estate properly, beneficiaries may have legal options available.

The appropriate action depends on the circumstances, but may include:

Requesting information from the executor

A beneficiary may request updates, documents or explanations about how the estate is being handled.

Negotiating a resolution

Many estate disputes can be resolved through communication and negotiation without the need for court proceedings.

Applying to the Supreme Court of Victoria

Where an executor has failed to properly perform their role, the Court may have powers to make orders relating to estate administration.

The Supreme Court of Victoria deals with various estate matters, including disputes involving executors, beneficiaries and the administration of deceased estates.

Can an Executor Be Removed in Victoria?

An executor cannot be removed simply because beneficiaries disagree with their decisions.

However, the Supreme Court of Victoria may remove an executor where there are serious concerns about their ability to properly administer the estate.

Examples where removal may be considered include:

• Persistent failure to perform executor duties
• Significant delays without justification
• Dishonesty or misconduct
• Conflicts of interest
• Mismanagement of estate assets
• Breakdown of trust between the executor and beneficiaries

The Court’s focus is not on punishing the executor, but ensuring the estate can be administered properly and beneficiaries are protected.

What Happens If an Executor Misuses Estate Funds?

Executors must only use estate money for legitimate estate purposes.

Misconduct may include:

• Taking money from the estate for personal use
• Failing to record transactions
• Selling assets for personal benefit
• Concealing estate property
• Paying themselves unauthorised amounts

An executor who causes financial loss to the estate may potentially be required to repay those losses.

In serious circumstances involving dishonesty or fraud, further legal consequences may apply.

How Long Does an Executor Have to Finalise an Estate in Victoria?

The time required to finalise an estate depends on the complexity of the matter.

Factors that may affect the timeframe include:

• Whether probate is required
• The number and type of assets
• Whether property must be sold
• Whether beneficiaries disagree
• Whether there are claims against the estate
• Whether tax issues need to be addressed

While some estates may be finalised within several months, more complex estates may take longer.

However, an executor cannot allow an estate to remain unresolved indefinitely without taking reasonable steps.

How Can Executor Disputes Be Avoided?

Many executor disputes can be reduced through careful estate planning.

When preparing a Will, it is important to:

• Choose an executor who is responsible and trustworthy
• Consider appointing an alternative executor
• Clearly communicate your wishes
• Regularly review your Will
• Ensure your estate planning documents remain current

The Australian Government’s MoneySmart guidance on estate planning also highlights the importance of having appropriate arrangements in place to protect your wishes and make administration easier for loved ones.

Need Help With an Executor Dispute or Estate Administration Matter?

When an executor does not follow a Will, beneficiaries can be left uncertain about their rights and what steps they should take.

The Wills and Estates lawyers at Irvine Lawyers provide advice on probate, estate administration, executor obligations and disputes involving beneficiaries.

Whether you are concerned about delays, missing information, possible executor misconduct or the administration of a loved one’s estate, our team can provide clear guidance based on your circumstances.

Contact Irvine Lawyers today to discuss your estate matter and understand your options.

Frequently Asked Questions