May 18th, 2011
Removing executors – what you need to know…
If you feel that the Executors appointed by Will are failing to administer the estate properly then you may want to take action sooner rather than later. We’ve put together some basic facts to consider. If you are facing this situation, however, we would always advise that you start by calling us, so we can discuss the matter and make sure you’re properly prepared and represented.
The Executors’ duties are contained in Section 25 of The Administration of Estates Act 1925. The Act stipulates that their duties are:
To collect and get in the real and personal estate of the deceased and 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 Courts and
- When required to do so by the High Court, deliver up the Grant of Probate or Administration to that Court.
Once the Executor has proved the Will of the Testator they are entitled to administer the estate.
What about when they aren’t fulfilling their duties?
- If the Executor is failing to carry out his duties in administering the estate then the first step is to write to the Executor to ask him to provide an account of the administration of the estate.
- If the response is not satisfactory then it is possible to apply to Court to remove and substitute the Executor.
What can you do if an Executor does not want to apply for a Grant of Probate?
If a named Executor refuses to apply for a Grant of Probate then the first step would be to write to the named Executor and put him on notice that an application will be made at Court to appoint somebody else to administer the estate in his place.
If still no Grant is taken then proceedings are necessary to issue and serve a Citation at Court requiring the named Executor to either apply for a Grant or otherwise renounce his entitlement to do so.
If the named Executor fails to take either of these steps then the Court can direct that a Grant of Probate be issued to another person.
A Citation cannot be issued against an Executor who has already intermeddled in the estate and different proceedings are needed to deal with an intermeddling Executor if he refuses to take a Grant.
Substituting an Executor
An application to substitute an Executor is not easy and it is necessary to prove serious misbehaviour before the Court will consider forcing an Executor to step down.
Generally the Courts will only remove the Executor if:
- It can be shown that the Executor is incapable of performing his duties by virtue of a physical or mental disability, or
- The Executor is unsuitable for the position due to a conflict of interest or some form of serious misconduct.
Any misconduct must be very serious in nature, leading to the estate suffering as a result of the misconduct. The Court is likely to consider the following examples of misconduct :
- Stealing from the estate
- Failure to keep accounting records
- Failure to obey a Court Order
- Wasting or mismanaging the Estate
The High Court has a discretionary power under Section 50 of The Administration of Justice Act 1985 to appoint a substitute personal representative or to terminate the appointment of a personal representative.
Such an application must be made pursuant to the Civil Procedure Rules 57.13, which sets out details of the documents that must be provided to support the application. These include:
- A certified sealed copy of the Grant of Probate or Letters of Administration
- A Witness Statement setting out the reasons why the removal or substitution of the Executor is sought (referring to his disqualification, incapacity or unsuitability as per above), particulars of the Deceased’s assets and liabilities, those who are in possession of documents relating to the Estate, names of beneficiaries and details of their interest and the proposed individual to substitute the Executor
Unless the proposed Executor is the Official Solicitor, his signed or sealed consent to act
- A Witness Statement of the proposed Executor’s fitness to act in such capacity, if he is an individual
Further information that might be of interest…
The contents of this article are intended for general information purposes only and shall not be deemed to be, or be constituted to be legal advice. We cannot accept responsibility for any loss as a result of any acts or omissions taken in respect of this article.