What to do if you’re unhappy with an executor

Executors named in a Will have a wide range of tasks to complete when someone dies and for some this can be very daunting.

As part of their duties an executor has to value the assets and debts of the deceased’s estate, pay any taxes and distribute the contents of the estate to the beneficiaries.

In order to do this, the executor may have to apply for a Grant of Probate, so that they have the authority to manage the estate and get access to the deceased’s bank accounts and property.

In this article we discuss what happens if an executor refuses to apply for the Grant of Probate and what a beneficiary can do if an executor is performing the role badly.

What can be done if the named executor refuses to apply for the Grant of Probate?

In many cases beneficiaries like to have the deceased’s estate administered quite quickly after the person has died.

If the executor refuses to apply for the Grant of Probate, then a beneficiary (or next of kin) can write to the executor to give notice that they are applying to court for someone else to administer the estate.

If the executor is in possession of the original copy of the Will, a subpoena must be served on them telling them to hand it over within eight days. If the executor doesn’t provide the Will within this timeframe, the next of kin can then lodge a citation at court, which forces the executor to either accept or refuse the Grant of Probate.

A citation allows the court to direct that the Grant of Probate be given to the next of kin, if the executor fails to refuse or accept the Grant of Probate. The next of kin can then administer the estate.

But if the executor has already intermeddled in the deceased’s estate, then a citation cannot be served. This is because an executor who has been involved in the estate cannot renounce their role or refuse to take the Grant.

If the executor refuses to apply for the Grant, the next of kin can apply for a court order which directs the executor to take probate within a specified timeframe or, alternatively, that they, as next of kin (or another specified person), can be issued with the Grant.

The next of kin can apply for the Grant once they have obtained a court order.

What can a beneficiary do if the executor is not performing their duties correctly?

If a beneficiary is unsure of an executor’s actions, they can initially write to the executor asking them for an account of the administration of the estate.

If the beneficiary is still dissatisfied with the executor’s explanation, they can apply to the court to remove and substitute the executor.

However, this is not an easy thing to do, as the beneficiaries must prove to the court that the executor has seriously misbehaved. The courts, generally, will only remove an executor if they have done the following:

1. Disqualification

The executor has become disqualified since they were appointed by the deceased, i.e. they have been convicted of a crime and sent to jail.

2. Incapability

They are incapable of performing their executor duties. For example, if they have a physical or mental disability (albeit permanent or temporary), which is preventing them from performing their duties.

3. Unsuitability

They are unsuitable for the position due to either a conflict of interest or serious misconduct. The misconduct would have to be so serious that it affects badly the estate (e.g. stealing from the estate, not keeping proper accounting records, not obeying a court order, or mismanaging the estate).

Misconduct can be difficult to prove. If the beneficiaries feel that the executor has been rude to them or does not provide them with sufficient information, then this is not enough for a court to remove an executor.

How to remove or substitute an executor by court order

Beneficiaries can apply for a court order to remove an executor by making a Part 8 Claim, under the Civil Procedure Rules 57.13.

The following documentation must be provided to support the application:

  1. A certified sealed copy of the Grant of Probate (or Letters of Administration).

  2. A Witness Statement outlining why the executor should be removed, along with details of the deceased’s assets and liabilities, names of the beneficiaries and the proposed name of the substitute executor.

  3. The proposed executor’s signed consent to act.

  4. A Witness Statement of the proposed executor’s fitness to do the role.

If proceedings regarding an inheritance dispute have already started, then the application to remove an executor must be made by an application notice and not by a Part 8 claim.

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Published on: September 21, 2012

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