It is usually safest to appoint more than one executor, except in the simplest of cases. Executors may be appointed to work together or one may be appointed as a back-up if the testator's preferred executor is unable or unwilling to act or dies before the testator.

Where no executor is appointed in a will

Where no executor is appointed in a will, the Court may grant the administration of the estate to a person entitled to the residue of the estate or (if appropriate) some other share of the estate. If the beneficiaries so request, the Court may appoint the Public Trustee or a private trustee company to administer the estate. If there is no person in South Australia over the age of 18 willing or able to act as executor, the Court may order that the administration be granted to the Public Trustee.

A person appointed as executor does not have to accept that responsibility [Succession Act 2023 (SA) s 66]. If a person renounces (refuses) such an appointment, the other executor named in the will becomes the sole executor. If no other executor is named in the will, the procedure above applies. This sometimes happens where the will is old. If there is no living executor, the procedure outlined above applies.

Where a sole executor dies

If the sole executor dies after the testator and after probate is obtained but before administration of the estate is complete, the executor of the deceased executor's estate becomes executor of the deceased's estate. The issues raised by the death of an executor are quite complex depending on the stage that matters have reached and legal advice should be sought.

Where the sole executor is under 18 years

Where the sole executor appointed under a will is under the age of 18, the Court will appoint the child's guardian as executor until the child reaches 18 years of age.

Where the executor has breached their duties

Court action can be taken against an executor who breaches or fails to discharge their duties. An executor’s duties are to preserve, protect and administer the testator's estate diligently. An executor may breach these duties if they take no steps to administer the estate, do not follow the directions in the will or fail to preserve estate assets or cause loss.

There are several types of breach and these can often overlap. The main categories of action against an executor are:

Misappropriation occurs when an executor uses an estate’s assets to pay their personal liabilities or fraudulently disposes of them for a profit.

Where assets have been dealt with in a manner other than provided in the will or by law, an action for maladministration may be sought. Examples of maladministration include failing to pay and discharge debts, selling property under market value, and using assets for personal use. It is not a defence to an action for maladministration that the executor acted in good faith.

A breach of an executor’s duties can also result in an action for breach of trust. For example, an executor who fails to demand and enforce payment of a debt owed to an estate will be in breach of their duty of care. If a loss is suffered by the estate as a result of the failure to enforce the debt, the executor will be liable to repay the loss.

Further examples of breach of trust include:

If found liable, the executor must make good any loss to the estate. It will not be a defence that the estate has been fully administered and there are no assets to meet the claim.

From 1 January 2025, the Supreme Court has new codified powers to hold executors to account.

Under s 97 of the Succession Act 2023 (SA), the Court may require an executor or administrator to give an undertaking to the Court, including an undertaking as to the administration of a deceased estate.

Under s 98, the Court is empowered to take action if an executor or administrator fails to perform their duties or fails to comply with an undertaking given to the Court or a direction of the Court in relation to the administration of a deceased estate. The Court may

Court action to hold an executor to account under s 98 must be started within 3 years after becoming aware of the executor’s failure to meet their duties [Succession Act 2023 (SA) s 98(3)]. Seek legal advice before taking court action as there may be costs implications.