What is an executor?
When a person (the testator) makes a Will, they choose one or more people to be an ‘executor’. The executor, or executors, are responsible for the administration of the deceased’s estate.
What does it mean if an executor has intermeddled?
The term ‘intermeddling’ is complex and will be assessed on a case-by-case basis. In brief, intermeddling in an estate is when someone has performed an action to deal with the deceased’s assets, or has held themselves out as an executor. Intermeddling takes many forms and can be as (seemingly) insignificant as paying a bill or can be more substantial, such as assuming responsibility for the deceased’s business or financial affairs.
At which point in the process can I remove an executor?
An application can be made to remove an executor either before a Grant of Probate has been issued or after.
What should I do if an executor has refused to apply for Probate?
If, for any reason, the executor refuses to apply for a Grant of Probate, it is sensible to write a letter to the executor to warn them that an application to the court may be necessary. Such an application would potentially lead to someone else being appointed by the court to deal with the administration of the estate. Providing the executor has not intermeddled (as above), a formal notice in the form of a ‘Citation’ from the Probate Registry can be served to the named executor. The purpose of the Citation is to:
- direct the named executor to take out the Grant of Probate or renounce his/her entitlement; and
- allow the court to direct that the Grant of Probate should be issued to the next of kin or a beneficiary if the named executor does not respond.
What should I do if an executor isn’t performing their duties correctly?
As a first step, it is sensible to write a letter to the executor stating your concerns and requesting an account of the administration of the estate. If this does not yield a satisfactory response, and you have evidence of serious misconduct, it may be necessary to make an application to the court to remove and substitute the executor.
How can you apply to court to remove an executor of a Will?
Applications of this nature are not without difficultly. The court will not take the decision to remove an executor lightly, and one must be astute to the fact that the court will generally not remove an executor simply because there is ill-feeling between the executor(s) and beneficiaries.
Generally, the court will only make an order to remove an executor if there is evidence of the following:
- the executor has been disqualified since the deceased appointed them e.g., the executor has been convicted of a crime and imprisoned; or
- the executor is incapable of performing their duties e.g., has a mental or physical disability, whether permanent or temporary, which is preventing the executor from properly carrying out their duties; or
- the executor is unsuitable.
Whether an executor is ‘unsuitable’ is a complex issue and generally will only be established if there is evidence of serious misconduct or a conflict of interest, for example:
- stealing from the estate; and/or
- failing to keep accurate accounting records; and/or
- failing to comply with a court order; and/or
- wasting or mismanaging the estate.
When seeking advice on matters concerning contesting a Will or the administration of an estate, it is essential to seek expert legal advice and guidance from a solicitor who specialises in this niche area of law. If you need advice, contact our Dispute Resolution department on 03456 465 465 or by email at: enquiries@rotherabray.co.uk for further information.
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
