ProbateWillsCan an executor be removed?

15th June 2020Siobhan Smith0
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Executors have a legal duty to administer the deceased’s estate.  They must make sure assets are identified and called in, debts owed by the deceased are paid, any taxes are declared and paid, and the assets are distributed to the right people according to the deceased’s will. Executors are expected to carry out their duties with due diligence, acting within the best interests of the estate, and also within a reasonable period of time. Complimentary to this duty on the executors is the beneficiary’s right to ensure that the estate is properly administered.

So, what happens if an executor is failing in this duty? The main problems a beneficiary may face are the executor’s unwillingness to act at all, or an executor failing to carry out their duties correctly. In either case a beneficiary may apply to the court to have the executor removed or substituted. The first steps should be to attempt to communicate with the executor to resolve any dispute without any court intervention but if mediation fails then applying to the court for a resolution may be the only option.

 

What if an executor refuses to act?

If an executor refuses to take any steps to apply for probate and administer the estate but also refuses to renounce their role so that someone else may take over then this leaves the estate in a state of limbo. To resolve this a beneficiary may apply to the court for them to issue a citation to the offending executor. This citation orders the executor to either accept or refuse the grant of probate. If the cited executor fails to appear then all of their rights in relation to the executor appointment cease. The next person entitled to take out the grant can then do so, and administration of the estate can take place.

This form of citation is only possible if the executor hasn’t ‘intermeddled’ in the estate. This is where the person has taken on some of the duties of an executor such as receiving the deceased’s assets or settling debts.

 

What if an executor is not properly administering the estate?

If a beneficiary has concerns about the executor’s handling of the administration and they haven’t been able to resolve them informally or through mediation then they may look to have the executor removed. Removing an executor is not an easy thing to do. Each case will turn on its own facts, but what must always be demonstrated to the court is that there are compelling reasons for the removal. Common examples of this are:

  • The executor is unfit or unable to act, possibly due to mental incapacity, imprisonment, or bankruptcy.
  • The executor is failing to administer the estate properly or failing to progress with the administration.
  • The executor has committed some serious misconduct that is causing or could cause loss to the estate. This may be stealing from the estate, wasting assets, or acting dishonestly.

A personal disagreement or hostility between the executor and beneficiaries is not often grounds enough to remove an executor. The hostility must be so severe that it obstructs the proper administration of the estate for the courts to consider removing the executor.

 

Powers of the courts to remove an executor

If the grant of probate hasn’t been taken out then the courts can rely on section 116 of the Senior Courts Act 1981 to pass over an executor and appoint an administrator to replace them.

The courts also have a power to remove or substitute an executor under section 50 of the Administration of Justice Act 1985. This power can be used both before and after the grant has been taken out. They can remove the executor and appoint a replacement. If appointing a substitute executor the courts will often choose to appoint a professional at that point.

The courts may also choose to simply terminate the executor’s appointment without appointing a replacement. They will only do this if it would still leave at least one suitable executor to administer the estate, or at least two in cases where two are required.

 

If you are a beneficiary of an estate and you’re having difficulties with an executor your first steps should be trying to communicate with the executor to resolve this with them informally. If you have concerns about how the executor is administering the estate you should write to them to request they provide an account of the administration. If you still aren’t satisfied then it’s at this point you should consider taking further action. If further action needs to be taken make sure you contact a suitably qualified probate specialist for advice.

 

*Please note that this has only covered executors. Where the deceased died leaving no will and administrators were appointed some procedures may slightly differ.

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

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