As a former Private Client Lawyer, I would regularly see clients stewing over who they would appoint as the Executor to their Will. In some cases, it was the clients’ biggest concern when writing their Will. Having now spent time dealing with probate and inheritance disputes, I can completely understand why. The role of an Executor is an important one, and one which carries significant responsibility.
This article looks at some of the reasons why it might be necessary to remove an Executor and details some of the options available to those who are concerned about an Executor’s ability to fulfil the role properly.
What is an Executor?
An Executor is the person responsible for the administration of a deceased persons estate (money, property, and possessions). ‘Executors’ will only be appointed in the instance that the deceased person opted to make a Will prior to their death. If the deceased person died without a Will, the law dictates who can administer their estate. In a situation where the deceased did not leave a Will, those administering the deceased’s estate will be referred to as an ‘Administrator’.
What duties does an Executor have?
An Executor’s duties are set out in section 25 of the Administration of Estates Act 1925. It states that an Executor shall be under a duty to:
- Collect and get in the real and personal estate of the deceased an administer it according to law;
- When required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court;
- When required to do so by the High Court, deliver up the grant of probate or administration to that court.
Why would you want to remove an Executor?
In some cases, it may be that the Executor has lost capacity and cannot fulfil their duties. However, in the vast majority of cases, it will be because an interested party (beneficiary or next of kin) believes that the Executor is not performing their duties correctly, there is wrongdoing, or because the Executor is refusing to undertake the work involved in administering the estate.
So where do you start if you want to remove an Executor?
The first question to ask is whether the Executor has undertaken any work in relation to the administration of the deceased’s estate or applied for the grant of probate (or in cases where there is no Will, letters of administration).
If the Executor has taken action to deal with the deceased’s estate, or has “held themselves out to be an Executor”, then they may be deemed to have “intermeddled”. Whether someone has “intermeddled” is a complex question and will be assessed on a case-by-case basis. If an Executor has intermeddled or obtained a grant of probate/letters of administration, it will affect the options available in trying to remove the Executor/Administrator, and so ideally, legal advice should be sought on this point.
What does it mean if an Executor has ‘intermeddled’?
An Executor who has “intermeddled” in the estate administration has essentially gotten involved in the estate beyond their scope of duties. This can mean many different things, but some examples include:
- Taking property from the estate
- Selling estate property
- Giving away property from the estate
- Settling estate debts
If an Executor is found to have intermeddled in the estate, they can be held liable for any resulting losses. Additionally, the Court may remove them as an Executor and appoint someone else in their place.
What are the options if there has been no “intermeddling” and a grant of probate or letters of administration have not yet been obtained?
The first step in any case should be for the interested party to write to the Executor/Administrator to set out their concerns, ask for an explanation of the work that has been completed to date, and to request a copy of any estate accounts. Once these documents have been received, it should become clearer whether the concerns are of merit and if the issues raised could potentially be resolved without Court involvement. If the Executor/Administrator refuses to provide this information, the interested party can make an application to the court to summons the Executor/Administrator to provide and inventory and account.
If the interested party feels their concerns are justified, they could invite the Executor/Administrator to step down (or “renounce”) from their position as Executor/Administrator. That said, this will only be possible if the Executor/Administrator has not “intermeddled”.
If the Executor/Administrator has not yet obtained a grant of probate/letters of administration, then the interested party could make an application under section 116 of the Senior Courts Act 1981 to replace (or “pass over”) the existing Executor/Administrator. However, it is worth noting that the Courts are typically reluctant to go against the deceased’s wishes, and so the interested party will need to prove that “special circumstances” apply which make it is necessary and expedient to replace the existing Executor/Administrator. Case law has provided many different interpretations of the phrase “special circumstances”, and so legal advice should be sought as to whether the threshold for an application under section 116 of the Senior Courts Act 1981 has been met.
Alternatively, an interested party could make an application through the High Court utilising Section 50 Administration of Justice Act 1985. However, it is worth noting that caselaw in this area tells us that “bad relations” between the parties is not sufficient for the Court to make an Order to remove a named Executor, and so it will be for the party bringing the claim to show that the administration of the estate will be adversely affected/frustrated, if the named Executor is not removed.
If it is the case that the Executor is simply refusing to apply for the grant of probate, then an interested party can write to the Executor to provide notice that a Court application will be made to appoint someone else to administer the estate, if they fail to apply for the grant and administer the estate themselves. If the named Executor is in possession of the original Will, a subpoena can be served on the Executor to ask them to deliver up the original Will within eight days. This can then be followed by an application for ‘citation’ – which is a direction issued by the Court, requiring the named Executor to either apply for the grant of probate, or to renounce his/her entitlement to do so. If the named Executor does nothing, then the Court can direct that a grant of probate be issued to the next of kin.
What are the options if a grant of probate or letters of administration have been obtained?
If a grant of probate/letters of administration has been obtained, but the interested party has concerns around the conduct of the Executor/Administrator then the options are much more limited.
In this situation, an application under Section 50 Administration of Justice Act 1985 would be the most common route forward. Again, the interested party will need to show that the administration of the estate will be adversely affected/frustrated if the Executor is not removed.
How much does it cost to remove an Executor?
Removing an executor from a Will incurs legal fees. The exact level of fees varies from case to case, depending on how complicated the case is and how strongly the Executor opposes it.
If your action to remove an Executor is successful, the Court will frequently order the Executor to pay a proportion of legal fees. This implies that even if you have to pay legal expenses up front, you may be partly repaid if the Executor loses the claim. This is why it is critical to consult with a lawyer first to ensure that your case is legitimate.
You may be able to obtain assistance with the financial consequences of removing an Executor from a Will. In certain circumstances, simply informing the Executor that you intend to file a claim against them is enough to make them reconsider. This is not always the case, and in some instances, legal action will be the only option to remove an Executor who is not undertaking their duties properly.
Can I remove myself as the Executor of a Will?
Contrary to popular belief, a person creating a Will does not need to seek the consent or endorsement of an individual before designating them as the Executor.
The Executor-designate in a Will may legally resign if they no longer wish to serve in that capacity and have not yet “intermeddled” (see above) with the estate. In order to do this, a legal document providing a reason for why you should be removed as Executor must be signed and sent to the Probate Registry.
Once you are removed as Executor, someone else will need to be appointed in your place.
Summary
It is fair to say that where money is at stake, and when disputes of this type arise, there can be some “bad blood” between the parties. That said, Court proceedings are costly and stressful for all concerned, and the Courts will typically be reluctant to interfere with the deceased’s wishes, without good reason. Consequently, it is always best (both from an emotional and financial standpoint) for the parties to a dispute to try to resolve the issue(s) without going through the Courts.
Involving an independent third party (such as a Solicitor) at an early stage can prove particularly helpful in preventing the issue(s) from escalating further – as a Solicitor wouldn’t carry any intra-family biases, and a Solicitor with experience in this area will be able to provide an objective view on the most cost-effective next steps for you.
If you are experiencing issues with an estate in which you are an interested party, please feel free to contact our Contentious Probate team on 01733 888 888 for further advice.
