How to remove an executor
Contentious Probate Solicitor, Lee Dawkins, takes a look at how to remove an executor
We are regularly consulted by people involved in an Executorship dispute. More often than not, these disputes involve a Beneficiary who wishes to know how to remove an Executor (or Administrator) from office. Sometimes these disputes involves two or more executors in conflict with themselves.
Executors and Administrators (who are known as Personal Representatives or PR’s) are appointed to administer an estate. Executors are appointed by a Will while Administrators are appointed when there is no valid Will and the intestacy provisions apply. Executors and Administrators therefore have a duty to act in good faith, even when they themselves are Beneficiaries or related to a Beneficiary.
Executors who abuse their position
All too often Executors and Administrators abuse their position and ignore their legal obligations. This can prejudice the position of the beneficiaries or other executors and it is in these circumstances that we are asked to advise on how to remove them.
We are also frequently consulted by Personal Representatives who feel that Beneficiaries are putting them under unreasonable pressure or asking them to act in a way that they are uncomfortable with.
Attempt to resolve the dispute out of court
We would always recommend that attempts are made to resolve an Executors dispute at the outset by negotiation. A few well chosen words at the right time can save an awful lot of aggravation (and legal costs) in the long run. However, this does not always work, in which case it may be necessary to involve specialist solicitors like us.
Court proceedings are generally regarded as a last resort, so in most cases we would recommend that a formal letter is sent to the Executor seeking an unreserved assurance that the position will be remedied and the estate administered properly in accordance with the law. We would also recommend pointing out to the Executor (or the Beneficiary, where appropriate,) the consequences of failing to cooperate. The threat of a costs order is frequently sufficient to persaude someone to adopt a more reasonable position, especially as the legal costs of an application to remove an Executor can run to £10,000, or even more in some cases. The fear of being ordered by a court to pay those costs can bring even the most recalcitrant party to their senses.
Mediation can also be an effective tool in resolving executor disputes out of court.
How to remove an executor
However, human nature being what it is, some people are oblivious to reason or logic. In these circumstances there is often no other alternative than to make an application to the Court to substitute and remove a rogue Executor from office.
The application to the Court is made under Section 50 of the Administration of Justice Act 1985. An alternative procedure under Section 116 of the Senior Courts Act 1981 can be used where the Executor has not yet been appointed under a Grant of Probate.
The Court will not remove an Executor or Administrator lightly. The grounds for removal must be sufficiently strong and compelling to justify a remedy being sought.
There have been a number of Court cases in which this issue has been considered. These give us some helpful guidance on what Judges are likely to do in particular circumstances. However, each case is different and heavily dependent on its own facts. We offer fee initial advice on all contentious probate matters and would recommend you seek initial advice before embarking upon this path.
Friction or hostility may not be enough
What is clear from these previous Court decisions is that mere friction or hostility between the Personal Representatives and Beneficiaries may not in itself be sufficient reason for removal. The Court will look at whether the relationship is having an adverse affect on the proper administration of the estate and whether the welfare of Beneficiaries is being prejudiced.
Evidence of misconduct, particularly in relation to financial dealings, will strongly influence the outcome. PR’s have a fiduciary duty to the estate. In particular they must not act in such a way that they gain personal benefit or endanger trust property. Where there is dishonesty or a lack of good faith then the Court is likely to act.
Similarly, Executors can be removed where they have failed to progress the administration of the estate within a reasonable time and have caused undue delay.
Weigh up the legal costs
As with most contentious and litigious disputes the costs of legal action must be weighed against the likely benefits. In some cases the parties will feel they have no option but to take action, in others, a careful consideration as to whether the potential legal costs are likely to be proportionate will be required.
We would recommend that anyone contemplating an application to remove an executor takes specialist legal advice from an expert in Contentious Probate Litigation who can undertake all the facts of the particular case.
Free case assessment
We offer a free case assessment review and would be happy to consider the fact of your particular dispute before you commit yourself to incurring legal costs.
Call us on 0808 139 1596 and one of our specialist lawyers with experience of handling Executorship disputes and applications to remove an executor from office will provide you with free initial guidance.
Alternatively, you can email Lee Dawkins at email@example.com