Victoria Taylor, senior associate solicitor from our contentious probate team, looks at the role of an executor and when their removal might be appropriate.
An executor is a person, or sometimes more than one person, appointed under a will to administer the estate of a person who has died. The job of an executor is to collect in the assets, pay any debts and then administer the estate amongst the beneficiaries pursuant to the terms of the will.
That sounds relatively simple. However, what happens if the executor is unwilling or unable to administer the estate or, if the executor is misusing estate assets or, if there is a significant conflict between the executor and the beneficiaries or between the executors?
An executor can resign from their position by voluntarily waiving their right to obtain a grant of probate. This is known as ‘renunciation’. This may be appropriate where an executor is aware at the outset that it would be inappropriate for them to act as executor.
Renunciation is only available to executors who have not already acted in the estate administration or shown an intention to act as executor. This is known as ‘intermeddling’. Renunciation is not available to executors who have already intermeddled.
If renunciation is not an option, then a court application will be necessary for the removal of an executor. The type of court application needed will depend on whether the executor has obtained a grant of probate but in either case, the court’s overriding considerations will be to the proper and efficient administration of the estate and the welfare of the beneficiaries.
The testator’s decision to appoint a particular executor is also an important consideration and therefore, the key practical question for the court is whether a particular executor’s involvement in the estate will hinder its administration.
Typical examples of the court removing an executor include the following:
- The executor has failed to progress the administration of the estate over a long period of time.
- The executor has failed to properly manage or has misused estate assets for example, by selling an estate asset at an undervalue, failing to collect rent on an estate asset or by allowing a friend or family member to reside in an estate property.
- The executor has failed to remain neutral and has dealt with certain beneficiaries more favourably than others.
- The executor has improperly incurred estate expenses or has spent estate funds on themselves.
It is important to note that the court does not need to find wrongdoing or fault by the executor, the emphasis is always on whether the administration of the estate is being carried out properly and the best interests of the beneficiaries.
However, if there has been wrongdoing or fault by an executor and this has put the estate at risk then the court is likely to remove the executor. Minor criticism of an executor will not suffice.
It will be important to consider who will be appointed as replacement executor and the cost of that to the estate, especially if it is to be a professional executor such as a solicitor.
An executor will not be removed by the courts lightly, so it is important to obtain legal advice when dealing with this issue.
If you are a beneficiary, co-executor, or creditor of an estate and are concerned by the actions of an executor then please contact Victoria Taylor on 01200 422 264 for a discussion as to how we can help you and the pricing options available.