What can be done if the Executor of a loved one's estate is not handling the estate assets properly?
Our Contentious Probate Solicitors explain the legal process for removing an Executor who fails to properly administer a deceased person's estate, including court procedures and key considerations.
Understanding the Legal Duties of an Executor
The starting point is to consider the Executor's legal duties and obligations. Under Section 25 of the Administration of Estates Act 1925, Executors (also known as 'Personal Representatives') are legally responsible for the administration of the Deceased's estate.
This includes ensuring that the estate is correctly distributed to the beneficiaries.
To properly administer the estate, Personal Representatives may need to:
- Notify and correspond with relevant organisations to collect the Deceased's assets.
- Identify and pay debts and liabilities of the estate.
- Search for unclaimed or missing assets.
- Prepare estate accounts.
When Can You Remove an Executor?
If the Personal Representatives are failing or refusing to properly perform their duties or have become unable to, you may consider their removal through the Court.
The Court has the power to remove Personal Representatives and appoint new ones in several ways.
There are different routes to remove a Personal Representative, depending on whether they have 'intermeddled' in the Deceased's estate and other factors, such as whether a Grant of Probate has been obtained. At Myerson, we can guide you through the appropriate route.
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Section 50 of the Administration of Justice Act 1985
Section 50 gives the Court discretion to appoint new Personal Representatives in place of some or all existing ones.
Applications under this section can be made in cases of conflict between Personal Representatives or if one desires to retire after intermeddling in the estate.
The Court's overriding concern is to ensure that the estate administration progresses smoothly and that the beneficiaries' interests are protected.
Pre-Action Protocol: Addressing Concerns Before Court Action
Before issuing a claim, Personal Representatives should be contacted with details of your concerns according to the Pre-Action Protocol. They must be given time to remedy their wrongdoing. If they fail to respond or comply, you can proceed with an application to the Court to seek their removal.
Court Procedure for Removing an Executor
If the Section 50 route is pursued, an application must be brought to the High Court under Part 8 of the Civil Procedure Rules.
All Personal Representatives must be joined as parties, and a Master in Chambers typically hears the application.
Proving Unsuitability of a Personal Representative
To remove a Personal Representative, you need to demonstrate to the Court that they are unsuitable or incapable of fulfilling their role. This could include unlawful estate management, theft, or failure to uphold key responsibilities. Misconduct must be proven with solid evidence, so it is essential to seek professional legal advice.
Required Documents for a Section 50 Application
When making a Section 50 application, certain documents must accompany the Claim Form, including:
- A sealed or certified copy of the Grant of Probate or Letters of Administration.
- If no Grant of Probate has been issued, a copy of the Will and written evidence with details such as:
- Estate property and its estimated capital value.
- Liabilities of the estate.
- Names of those holding estate-related documents.
- Beneficiaries' names and their respective interest in the estate.
- Name, address, and occupation of the proposed substituted Personal Representative.
Additional Procedural Requirements
Additional procedural steps may apply depending on the case. For instance, if a Personal Representative is to be substituted, the Claim Form must include evidence of the new appointee's fitness and consent to act, along with details of any fees they intend to charge.
Legal Costs in an Executor Removal Application
In removal applications, Rule 46.3(2) of the Civil Procedure Rules states that a successful applicant is generally entitled to costs not covered by the estate. However, if the Personal Representative has acted unreasonably, they may be ordered to cover the successful applicant's legal costs.
Contact Our Contentious Probate Solicitors
Proving misconduct and navigating procedural requirements can be complex, so seeking expert advice is crucial.
If you have concerns about an Executor's conduct or any other probate matter, contact us to speak with one of our experienced Probate Litigation Solicitors on:
01619414000
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Nicola Moulds
Senior Associate
Nicola has over 15 years of experience acting as a Contentious Probate solicitor. Nicola has specialist expertise in disputes as to the validity of wills, claims against personal representatives, trustees and professionals, applications for the removal of executors, as well as burial disputes.
About Nicola Moulds