Contentious Probate Solicitor, Lee Dawkins, takes a look at how to remove an executor
We are regularly contacted by people who are involved in an executor dispute. These executor disputes often involve a beneficiary who wants to know how to remove an executor (or administrator) from office. Sometimes the dispute involves two or more executors who are at war with each other, when again advice is required on how to remove one of the executors. The law governing executor disputes and removing an executor is complex, but here is a brief guide to the main principles.
The role of an executor
Executors and administrators (who are known as Personal Representatives or PR’s) are appointed to administer an estate. Executors are appointed in 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 independently and in the best interests of the estate, even when they themselves are beneficiaries or related to a beneficiary.
Executors who abuse their position
All too often we encounter executors and administrators who 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 often asked to advise on how to remove an executor.
Resolving the executor dispute out of court
We would always recommend that attempts are made to resolve an executor 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 legal 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 the consequences of failing to cooperate or act in good faith. 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 exceed £10,000 – substantially so in some cases. The fear of being ordered by a court to pay those costs personally can bring even the most recalcitrant party to their senses.
Mediation can also be an effective tool in resolving an executor dispute out of court.
How to remove an executor
However, human nature being what it is, some people are regretably oblivious to reason or logic. In these circumstances there is often no other alternative than to make an application to the Court to remove a rogue executor from office.
The application to the Court can be 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 the remedy being sought.
There have been a number of high profile cases involving the removal of an executor. 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 guidance on all contentious probate matters and would recommend you seek initial advice before embarking upon court action.
Friction or hostility may not be enough to remove an executor
What is clear from these previous Court decisions is that mere friction or hostility involving executors may not in itself be sufficient reason for the court to agree to remove an executor. The Court will look at whether the relationship is having an adverse effect 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. Executors have a fiduciary duty to the estate. In particular they must not act in such a way that they gain a personal benefit or endanger trust property. Where there is dishonesty or a lack of good faith then the Court is likely to order that an executor be removed.
Executors can also be removed where they have failed to progress the administration of the estate within a reasonable period of time and have caused undue delay.
Weighing up the benefits of removing an executor against the legal costs involved
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 a lawyer who is experienced in contentious probate litigation, as bad decisions can be extremely costly.
Free case assessment
We offer a free case assessment service and would be happy to consider the facts of your particular executor 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 executor disputes and applications to remove an executor from office will provide you with free initial guidance.
Alternatively, you can email brief details to us at firstname.lastname@example.org