When I practised private client law, I frequently observed people agonising over who they should name as the Executor of their Will. When preparing their Wills, it was occasionally the clients’ top worry. Now that I’ve had to deal with probate and inheritance conflicts, I thoroughly get why. A significant amount of responsibility is involved with the Executor’s duty.
This article discusses some of the possible justifications for removing an executor and discusses some of the solutions open to people worried about the executor’s ability to carry out their duties effectively.
What exactly is an Executor
An Executor is in charge of managing the assets (cash, real estate, and possessions) of a deceased individual. “Executors” will only be chosen in the event that the deceased person chose to make a Will before passing away. The law specifies who can manage a decedent’s inheritance if they passed away without a Will. When a decedent died without leaving a will, the person in charge of handling the estate will be referred to as the “Administrator.”
What are the duties of an Executor?
Section 25 of the Administration of Estates Act of 1925 outlines the responsibilities of an Executor. According to this, an Executor has a responsibility to:
- Gather and secure the real and personal property of the deceased, and then manage it in accordance with the law.
- Exhibit in court, under oath, a complete inventory of the estate upon the court’s order, and upon the court’s request, provide an account of the estate’s administration.
- Deliver the grant of probate or administration to the High Court when requested by it.
The possible reason you want to remove an Executor
It’s possible that the Executor in certain instances has lost their capacity and is unable to carry out their obligations. The vast majority of the time, however, it will be because a beneficiary or next of kin is concerned that the Executor is doing something illegally, there is misconduct, or the Executor is unwilling to do the work necessary to run the estate.
So how do you start the process of removing an Executor?
The first thing to check is whether the Executor has started working on the estate’s administration or submitted an application to court for a grant of probate (or letters of administration for situations where there is no Will).
The Executor may be recognised to have “intermeddled” if they have taken action to handle the estate of the deceased or have “held themselves out to be an Executor.” The complicated question of whether someone has “intermeddled” will be evaluated on a case-by-case basis. Legal counsel should ideally be consulted on this issue because it will affect the choices available in trying to remove the Executor/Administrator if they have intervened or received a grant of probate/letters of administration.
What does “intermeddling” by an executor mean?
When an Executor “intervenes” in the process of running an estate, they have gotten involved in the estate beyond what they were supposed to do. This can mean a lot of different things, but here are some examples:
- Taking things from the deceased’s estate
- Selling of State Property
- Transferring assets from the estate
- Paying off estate debts
An executor may be held accountable for any losses sustained if it is discovered that they meddled in the estate. Additionally, the Court has the authority to revoke their appointment as an Executor and replace another one.
What choices do you have if there hasn’t been any “intermeddling” and you haven’t gotten a probate grant or letters of administration yet?
In this situation, the interested party should first write to the Executor/Administrator to express their concerns, request an explanation of the work that has been done thus far, and get a copy of any estate accounting. After receiving these documents, it should be easier to figure out whether the worries are valid and whether the problems could possibly be remedied without the intervention of the court. If the executor or administrator refuses to give this information, the interested party may ask the court to order them to provide an inventory and account.
If the interested party believes their worries are valid, they may extend an invitation to the Executor or Administrator to resign (or “renounce” from their role as Executor or Administrator). The Executor/Administrator must not have “intervened” in order for this to be possible.
The interested person may make an application under section 116 of the Senior Courts Act 1981 to replace (or “pass over”) the current Executor/Administrator if they have not yet received a grant of probate or letters of administration. The interested party must prove that “special circumstances” exist that make it essential and practical to replace the current Executor/Administrator; it is important to keep in mind that the Courts are often reluctant to go against the deceased’s wishes in these situations. The phrase “special circumstances” has been interpreted in case law in a variety of ways, thus it is best to get legal counsel before determining whether the requirements for an application under section 116 of the Senior Courts Act of 1981 have been satisfied.
The last resort is to file a claim through the High Court under Section 50 of the Administration of Justice Act 1985. It is important to note, however, that case law in this area teaches us that “bad relations” between the parties are insufficient for the Court to issue an Order to remove a named Executor; instead, the party making the claim must prove how the named Executor’s continued appointment will negatively affect or disappoint the estate’s administration.
If an Executor refuses to apply for probate application, what should you do?
If the Executor is simply refusing to request a grant of probate, then a party with an interest in the estate may write to the Executor to inform them that if they do not request the grant and administer the estate themselves, a court application will be made to appoint a different person to handle the administration of the estate. A subpoena can be sent to the nominated Executor, requesting that they hand up the actual Will within eight days if they are the one who is in possession of it. This may be followed by an application for a “citation,” which is a court order forcing the named Executor to either ask for a grant of probate or forfeit his or her right to do so. The Court may order that a grant of probate be awarded to the named Executor’s heirs if they fail to act as directed by the named Executor.
What choices are available after obtaining a grant of probate or letters of administration?
The choices are far more constrained if a grant of probate or letters of administration has been obtained but the interested party is still unhappy with the Executor’s or Administrator’s behaviour.
The most common course of action in such a situation would be to file an application under Section 50 of the Administration of Justice Act of 1985. Again, the interested party must demonstrate how the Executor’s continued service would negatively impact or hinder the estate’s management.
How much will it cost to remove an Executor?
Legal fees are needed to remove a beneficiary from a Will. The exact amount of fees depends on how hard the Executor is trying to stop the case and how difficult it is.
The Court typically orders the Executor to pay a portion of the legal costs if your motion to remove an Executor is successful. This suggests that even if you must pay your legal fees up in advance, you might get some of your money back if the Executor loses their claim. To make sure that your case is valid, it is crucial to speak with a solicitor first just like SGT Law firm.
You might be able to get assistance with the financial effects of getting rid of an Executor in a Will. In certain cases, just letting the Executor know that you’re planning to sue them will cause them to think twice. This isn’t always the case, and in certain cases, taking legal action will be the only way to get rid of an executor who isn’t doing their job right.
Can I resign from my position as an executor of a will?
Contrary to popular misconception, naming someone as the executor of a will does not need the person making the will to get their approval or support.
If the Executor-designate in a Will no longer wants to act in that role and has not yet “intermeddled” with the estate, they may formally resign. In order to do this, you must sign and send a legal document to the Probate Registry explaining why you could no longer serve as the Executor.
Someone else must be assigned as Executor once you are removed from the position.
It is reasonable to suggest that there may be some “bad blood” between the parties when there is money involved or when issues of this nature emerge. Despite this, court cases are expensive and traumatic for everyone involved, and the courts are often hesitant to go against the deceased’s intentions unless there is a compelling reason to do so. Therefore, it is always preferable for the parties to a dispute to attempt a resolution outside of court (from both an emotional and financial aspect).