Can an executor of a will be replaced or removed?
When dealing with the affairs of a deceased loved one, it may sometimes be necessary to remove an executor or administrator (i.e. a Personal Representative or “PR”) of the estate. This may be due to a conflict of interests, lack of progress in dealing with the estate, a breakdown of trust and confidence, or another substantial reason. However, removing a PR is rarely an easy task. Therefore, it may be necessary to seek the removal and replacement of the PR through court action.
What is an Executor?
An executor is responsible for a deceased person’s estate according to that person’s will. An executor can be a family member, a friend, or a professional such as a director of a law firm, and it is also possible to have more than one executor at the same time. The executor’s primary duty is to carry out the wishes of the testator (i.e. the person creating the will) when dealing with the testator’s assets (e.g. money, property, or personal possessions).
Can I renounce myself as an Executor?
The testator is under no obligation to ask someone for permission before naming them in their will as the executor. However, it is advisable to let someone know if you are thinking about making them an executor of your will. It may also be beneficial to include more than one executor or replacement executors. This enables further safeguards to be in place in the event the executor passes away before the testator does or is unable to act for some other reason.
If you do not want to be an executor, you can formally renounce (or give up) this role, which would involve completing a legal document called Form PA15 and sending this to the Probate Registry.
However, if you have already assumed a duty or done something that only an executor would do, you will have “intermeddled” with the estate and you will therefore be unable to renounce the role of executor. In that case, you will need to ask the Court for permission to be removed as the executor.
What should I do if an Executor is not performing their duties?
The first step is that you should try to communicate with the executor about your concerns regarding the management of the estate and keep written records of this. You should also request an account for how the executor has been running the estate and dealing with the estate’s assets.
It is important to try and resolve issues amicably where possible before resorting to court intervention.
However, if you believe that this is insufficient and that the executor has still not been performing their duties correctly, you can make an application to the Court under section 50 of the Administration of Justice Act 1985 for the executor to be removed and replaced.
How can I apply to the court to remove an Executor?
The Court will only remove an Executor if there are good reasons (supported by evidence) to do so. Therefore, to support your case for removing the executor, you may need to provide the Court with:
1) Evidence of the executor’s physical or mental incapacity;
2) Evidence of the executor’s failure to administer the estate in a timely, effective or accurate manner;
3) Evidence of financial misconduct or dishonesty by the executor in dealing with the estate; and/or
4) Evidence that the executor has been convicted of a crime and therefore should be disqualified.
Once it has received this evidence, as well as any evidence from the executor, the Court will decide whether or not to remove and replace the executor. It may be that a professional executor is appointed to minimise the potential of further dispute occurring in the future.
Each case is assessed on a case-by-case basis. It is important to consider the costs and benefits carefully when deciding whether to pursue legal action. Evidence of how the executor has dealt with the estate’s finances is of critical importance when the Court decides whether to successfully remove an executor.
It is important to remember that the responsibility of the executor is to the estate and to fulfilling the testator’s wishes accordingly. The court will not take matters such as bad character or dishonestly lightly and therefore in such cases may be more likely to remove the wayward executor.
Do you believe an executor is not acting correctly? Are you seeking advice on an ongoing issue with an executor or the distribution of an estate? Are you an executor who is being accused of not acting correctly? If so, please contact our litigation team on 01494 773377 or email hello@lennonssolicitors.co.uk