What is Estate Administration? 

The Removal of an Executor

We are often asked as to whether an executor can be removed owing to a variety of things, but the main reason is that the beneficiaries feel an executor is not doing their job correctly, or is taking an unreasonable amount of time to administer the estate, or indeed has indicated that they will not follow the Last Will and Testament of the testator.

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 any 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 in a reasonable period of time. Complimentary to this duty on the executors, is the beneficiaries 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 executors and willingness 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 step 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 maybe the only option.

In the case that an executor refuses to act or refuses take any steps to apply for the probate and administer the estate, but also refuses to renounce their role so that somebody else may takeover, then this leaves the estate in a state of limbo.

To resolve this, a beneficiary may apply to the Court for them to issue what is known as ‘citation’ to the offending executor. This ‘citation’ orders the executor either to 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 then the administration of the estate can take place.

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

What happens if the executor is not administering the estate properly?

If the beneficiary believes, or has concerns about the executors handling of the administration, and they haven’t been able to resolve them informally or through mediation, then they may look to have an executor removed.

Removing an executor is not an easy thing to do, especially if that executor puts up some form of defence, as to the reason for their actions.

Each case will turn on its own facts, but what must always be demonstrated for the Court, 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, bankruptcy or being in prison.
  • 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 maybe stealing from the estate, wasting assets or acting dishonestly.

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

The Court has considerable powers to remove the executor, and if the Grant has not been taken out then the Courts can rely on Section 116 of The Senior Courts Act 1981, to Passover an executor, and appoint an administer 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.

What is the beneficiary’s position?

If you are a beneficiary of an estate, and you are having difficulties with an executor, your first step should be trying to communicate with the executor to resolve this with them informally. If you have concerns as to how an executor is administering the estate, you should write to them and request they provide an account of the administration.

If you are still not satisfied, then it is 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.

As a practical note, please ensure you keep all copies of the correspondence, both sent and received, this includes emails and letters. If you can, when you make telephone calls or have conversations with executors that you think you are going to have a problem with, immediately make notes of the conversation, what was said by you, and what was said by the executor.

Often these cases cannot go forward because the evidence against the executor is not sufficiently recorded.

If you have any concerns please feel free to contact us at the office, and we will be able to answer any questions raised.