Removing an Executor, some considerations
I’m very dissatisfied with my executor! Some thoughts before removing them.
Before removing an executor some consideration should be given to whether they are in fact carrying out their duties. These are outlined in what is called “The Executors Oath” which is to be found at section 25 of the Administration of Estates Act 1925. In practical terms their role is to gather in the estate of the deceased, obtain probate or letters of administration if required and administer the estate by paying all creditors and distributing it to the beneficiaries.
Executors/personal representatives have a duty to act in the best interests of the estate. If you feel they are not carrying out their duties properly you may consider replacing them, but it must be stated that before doing anything it is vital that you obtain expert legal advice.
Removing an executor is not straightforward as this must be done by a court. The court will not usually act on the basis that there may be a bad relationship with the executor. There must be clear evidence of misconduct, particularly in relation to financial matters, before the court is likely to make an order to remove the executor/personal representative.
Applications to remove/substitute a personal representative are made under section 50 Administration of Justice Act 1985. This act usually deals with the removal of executors and administrators after the grant of probate has been issued. Cases are expensive as proceedings are usually held in the High Court. Also, outcomes are unpredictable. The costs involved are difficult to determine as they depend on whether the legal issues are straightforward. Typically, a solicitor may quote between £5000 and £15000 but it can easily be a lot more. It should also be noted that the executor will also incur their own costs and you may also become liable for these.
Alternatively, section 116 of the Supreme Courts Act 1981 can be used where the executor has not yet been appointed under a grant of probate. Again, a court process is involved but this time it’s the Probate Registry.
Court proceedings should be considered as a last resort. When considering removing an executor there are other a number of options to explore before court action is taken.
- One alternative may be mediation. There are solicitors who will be willing to offer mediation or other forms of Alternative Dispute Resolution to the executor to resolve a dispute.
- The executor has one year from the date of passing to administer and distribute the estate. If you are within the year from the date of passing only a potential application can be made to remove the executor.
- A temporary halt to proceedings can be achieved by an application to the probate court called a caveat. This may provide the time and space for matters to be reconsidered by all concerned.
- Where an executor is taking too long to obtain a grant of probate, an application for a ‘citation’ can be made to either prompt them into action or else permit another person to be appointed. The executor can be compelled by the Court to act but more likely they will be replaced by the next entitled person.
- Ask the executor for a Request for Inventory and Account under section 25 of the Administration of Estates Act 1925. The application is straightforward the cost Is minimal. The outcome is that the executor is required to explain themselves in a court setting.