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  • Overview

    An executor is the person appointed by an individual to administer their estate upon death. Alternatively, if no executor is appointed or the deceased left no will, the person who takes legal responsibility for administering the estate is called an ‘administrator’. We refer below to ‘executors’, but the principles are also generally applicable to ‘administrators’.

    Whilst the majority of executors will carry out the administration of an estate without any problems, sometimes issues can arise where the beneficiaries or a co-executor would prefer for an executor to be removed from their role. There are several methods to do so, but which can be used is dependent upon the point reached in the administration process.

     

    Obtaining a Grant of Probate

    The first step which an executor must take is to obtain a Grant of Probate (a Grant).  This document provides an executor with their official authority to administer the estate. If an executor has failed to obtain a Grant within six months of the deceased’s date of death, it is possible to follow a process known as citation. Citation will either prompt the executor to obtain a Grant and start administering the estate or, if they do not respond to the citation process adequately, allow for a replacement executor to take on the role.

    It may be that the reason for a delay in obtaining the Grant is a dispute between executors / an executor and the beneficiaries, or because an executor has a conflict between their own interests and their duties as an executor. In such situations, the citation process may not be desirable, and an application for the outright removal of the executor from their position may be preferred. An application under section 116 of the Senior Courts Act 1981 (SCA 1981) would serve this purpose, as it allows the court to appoint someone other than the nominated executor to administer the estate.

     

    The Provision of Estate Accounts

    Once the Grant has been obtained, an executor is obligated to collect the property of the deceased, pay debts and liabilities and thereafter distribute the estate to its beneficiaries.  As part of their responsibilities, an executor must keep estate accounts and make these available for a beneficiary to inspect upon request.

    If it is suspected that an executor is not fulfilling their duties, a beneficiary can request a copy of the estate accounts. If it is clear from these that the executor has not been properly administering the estate, section 50 of the Administration of Justice Act 1985 (AJA 1985) allows another executor or beneficiary of the estate to ask the Court to intervene and remove and / or replace them.

    Unlike an application under section 116 SCA 1981, a section 50 AJA 1985 application can be done after the Grant has been obtained. Furthermore, there does not need to have been any wrongdoing on the part of the executor. If the estate cannot be administered with the appointed executor holding on to the office, there is likely to be a basis for their removal, even if they have not done anything wrong.

     

    Conclusion

    Although the role of an executor is a position which affords an executor control over the deceased’s estate, there are processes which allow beneficiaries and co-executors to prompt executors into action, remove and replace them if necessary. The process to be used, however, depends upon the point reached in the administration process.

    We regularly assist individuals who encounter difficulties with executors, whether by aiding the resolution of potential difficulties and disagreements or through more formal legal action such as those set out above. If you would like more information, please get in contact with our Contentious Probate team.

     

    If you would like to take a more detailed look into the above points, please see our information sheet on the subject here: https://www.ts-p.co.uk/publications/what-to-do-if-you-are-unhappy-with-an-executor.

  • Related Services

    Probate and Estate Administration

    A probate lawyer will give you clear guidance about the different levels of service on offer, the steps involved, the costs and probable timings.

    Wills, trusts & tax planning

    Our specialist lawyers provide high quality, intelligent advice that is comprehensive, considered and clear.

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