It is an executor’s responsibility to deal with an estate when a person passes away, leaving a Will.
What happens if the executor does not do their job correctly, or worse, acts to the detriment of the estate, whether on purpose or not?
Our Contentious Probate Lawyers outline is five practical steps for beneficiaries to take when they encounter an executor who is causing problems.
Communicate with the executor
One of the first steps that a beneficiary should take is to try to communicate with the executor.
Setting out your questions or concerns in writing can often help clarify any misunderstandings and also provide the executor with an opportunity to rectify any wrongdoing. It is surprising just how many executor disputes can be avoided by early communication between the parties.
Having the executor’s written responses can also assist if court proceedings are necessary.
This is because you will then have a paper trail to support your claim, which you can present to the court.
Consider applying for an inventory and account
An application for an inventory and account can be applied for when a beneficiary has questions about an estate administration, but the executor is not providing satisfactory (or any) information.
This can be a very effective way of getting answers about the estate and the executor’s actions (or inaction) as it requires the executor to provide a full account of the estate administration to the court.
Sometimes the information that is obtained in this way can be used to support an application to remove the executor from their position (see below).
Consider applying to remove the executor
If the executor’s conduct is so poor that it is to the estate’s detriment, a beneficiary can take the “nuclear” approach of applying to have them removed from their executor position.
This application should not be made lightly as the courts prefer for Wills to be upheld, including the appointment of executors.
It should therefore only be made if there has been serious wrongdoing which is preventing the estate from being properly administered.
The application can also be made with the consent of the executor, which is the most cost-effective way of proceeding (because it prevents a contested court case).
As a result, it is important to first invite the executor to “stand down” before issuing court proceedings.
If a beneficiary decides to make this application, they should consider who might replace the executor.
This could be a professional person, such as a solicitor, or it could be someone they know, such as a family member or friend.
Consider engaging in Alternative Dispute Resolution
Litigation is not cheap, so it is sensible to engage in Alternative Dispute Resolution (ADR) at an early stage.
ADR is a process through which the parties try to resolve the dispute between themselves (i.e. outside of court).
There are various methods of ADR including mediations, round table meetings or simply making offers in correspondence.
ADR is often highly successful and is one of the most cost-effective ways to resolve disputes. The court looks favourably on ADR and has the power to penalise a party who unreasonably refuses to participate in it.
Take legal advice
Although we have set out ways to take matters forward when you have a problem executor, it is important to take legal advice at an early stage.
At Myerson, we have one of the largest teams in the North-West who handle these types of claims on a daily basis.
We can identify any potential causes of action that you may have and advise on the best steps to take.
This will ensure that your position is protected and that the estate administration is handled correctly.
Need advice on a problem executor?
Our expert Contentious Probate team can help you protect your interests and resolve disputes efficiently.
0161 941 4000
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Stephanie Ewan
Senior Associate
Stephanie has over 7 years of experience acting as a Contentious Probate solicitor. Stephanie has specialist expertise in Will validity disputes, claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 and disputes between executors, trustees, and beneficiaries.
About Stephanie Ewan