A personal representative is someone who is appointed to administer the estate of a deceased person. They are called executors if they are the person named in a valid Will, or administrators where there is no valid Will. For this guide, we are using the word executors to encompass any personal representatives appointed to administer an estate, whether they are the executor named in the Will, or the adminsitrator appointed where there is no Will.
Clients who are concerned that an executor the deceased appointed is not conducting themselves properly often want to know whether there is anything that can be done, and whether it is possible to remove an executor from their role to allow a substitute executor to take their place.
Removing an executor can be a complex and lengthy process, so we recommend that you seek expert legal advice at an early stage.
Executors have an overriding duty which comes from section 25 of the Administration of Estates Act 1925:
(a) collect and get in the real and personal estate of the deceased and administer it according to law;
(b) 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;
(c) when required to do so by the High Court, deliver up the grant of probate or administration to that court.
(Section 25, Administraiton of Estates Act 1925)
In simple terms, executors must collect in the deceased’s assets and administer the deceased’s estate in accordance with either the Will or the Intestacy Rules, dealing with all of the financial matters necessary to pay off the deceased’s liabilities and distribute what is left to the relevant beneficiaries.
They also need to keep accurate accounting records to ensure that the estate is properly administered and that they have carried out their duties correctly. They also must act independently, impartially, and in the best interests of the estate.
They must not favour any of the beneficiaries over another beneficiary, or try to benefit themselves unless the Will allows them to, and should remain neutral if any beneficiaries contest the Will.
An executor who breaches these duties runs the risk of being removed as executor, and potentially being personally liable for the legal fees of the party applying for the court order for their removal. For this reason, it is common for executors to instruct solicitors to help obtain the grant of probate and to administer the estate.
Due to the risks involved, often a named executor simply does not want to take on the responsibility. Alternatively, they may not have the time to commit to the role. If so, an executor can step away from their duties by formally renouncing their position, but only if they have not already started dealing with the estate (known as intermeddling). This involves signing a legal document known as a deed of renunciation, which should be signed before obtaining the grant of probate.
If the executor has started dealing with the estate, or they have already obtained the grant of probate, it will not be possible for them to renounce their position.
We always recommend seeking advice as soon as possible if you are an executor who wishes to relinquish their duties.
If someone with an interest in the estate – for example a beneficiary or another executor (if the Will lists more than one executor) – believes an executor is not carrying out their duties correctly, or is not acting in the best interests of the estate, beneficiaries and creditors, it is possible to ask the Court or the Probate Registry to exercise their discretionary power to remove the executor from their position and replace them with someone more suitable.
This is done by making an application to the High Court (under section 50 of the Administration of Justice Act) or using the alternative procedure by applying to the Probate Registry (under section 116 of the Senior Courts Act 1981), depending on whether the executor has obtained the grant of probate and how far along the administration of the estate is.
Court proceedings should be a last resort, however, and such an application can usually be avoided if the parties first try to settle the issues amicably in the first instance, complying with the civil procedure rules.
We often find that by forcing executors to face up to and recognise they have failed in the proper administration of the estate, we are able to persuade them to relinquish their duties without Court intervention.
Where an executor refuses to relinquish their duties, it may then be appropriate to apply to the Court under the Administration of Justice Act or to the Probate Registry to seek a Court Order to have the named executor removed and probate granted to someone else.
The Court will not remove an executor lightly, and as such it should be seen as a last resort. To remove an executor from their position the Court must be satisfied that there is a risk that if that they were to remain in their role the administration of the estate would not be carried out correctly, to the detriment of the estate or to one or more of the beneficiaries.
We often deal with issues where the executor is accused of serious misconduct relating to the estate’s finances, and this is usually sufficient to convince the Court that they should be replaced in their role.
A breakdown in the relationship between a beneficiary and a executor could in some cases cause an executor to treat that beneficiary unfairly, but it will not be enough on its own to convince the Court to remove an executor, particularly if that executor is able to show that they are complying with all of their duties, acting in good faith, and that the beneficiary in question is not adversely affected despite the relationship breakdown.
It is not enough that a beneficiary believes that an executor is breaching their duties; for such an application to succeed the Court must be satisfied that there is clear evidence of misconduct and compelling reasons for the executor to be removed.
In rare cases, the executor may be permanently or temporarily unable to perform their duties, for example if they have a mental or physical disability that prevents them from ensuring the proper administration of the estate. In such circumstances, a Court is likely to order that the executor should be replaced.
Usually, especially where the beneficiaries and executors are related, an independent, impartial professional executor is appointed by the Court to avoid the risk of any further family dispute being caused by the administration of the estate.
Assuming the claim does not settle, it normally takes around 12-15 months for the claim to get to the Court for a final hearing after it has been issued. Usually though, claims do not get to a final hearing; the overwhelming majority of such applications are settled before then, so from the date a claim is issued, most a resolved within 12 months.
Generally, executors who incur costs in carrying out their duties are able to recover their legal costs from the estate. However, it is unlikely that an executor will be able to recover their legal costs from the estate if the Court finds that they were in breach of their duties or have committed serious misconduct in their role, meaning they will often have to cover those costs personally.
In addition, court orders to remove an executor will often include an order that the removed executor should be personally liable for the costs of the person making the claim against them.
For that reason, it is vital that executors faced with a claim take legal advice at an early stage.
There are no strict time limits for removing an executor, but legal advice should be obtained as soon as there are concerns, because once the executor has finished administering the estate it may be very difficult to hold them accountable, especially if the estate’s assets have already been distributed and then dissipated.
We have a wealth of experience acting on claims to remove an executor – as well as a host of other type of probate claim – acting for beneficiaries, executors, and professional executors over a number of years.
If you are concerned that an executor is breaching their duties and should be removed, or if you are an executor and are facing accusations from beneficiaries or another executor, contact our contentious probate specialists today to discuss how we can help resolve your issue.
Please contact us on 02920 829 100, visit our contact page, or fill out the enquiry form on this page.
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