When someone makes a will, they will usually name an executor in it to manage the administration of their estate and to ensure that their property and possessions are distributed according to their wishes after they die.
Controversially, you do not have to ask a person named as an executor if they are happy to carry out this duty. So, what happens if an executor cannot or does not want to do it, or if they are not performing their duties properly? Amy Read, an inheritance dispute specialist at WBW Solicitors explains.
If someone named as an executor in a will does not want to undertake the role (such as if they are ill or have moved overseas), they can formally renounce the position by signing a legal document and sending it to the Probate Registry. However, they can only do this if they have not ‘intermeddled’ in the estate.
Intermeddling is where they have assumed the role of executor or performed an action in connection with the estate. This would include, for example, paying a debt with the deceased’s money or running their business after death. Arranging a funeral, however, would not be taking on the executor role and would not be considered intermeddling.
If an executor is refusing to perform their duties, or not carrying them out correctly, it may be possible to make an application to the court to have them removed. However, before such an application is made, it is important to try and explore other avenues to resolve the problem.
If, for example, the executor is refusing to apply for probate, you can ask the Probate Registry to serve a formal citation on them which directs them to take the grant of probate or renounce his or her executor status. If they fail to respond, you can then ask the court to order that the grant of probate be issued to another suitable candidate.
If an executor is not carrying out their duties properly, you should outline your concerns in writing and ask for an account of the administration of the estate. If their response is not acceptable you can apply to the court to remove and substitute the executor under Civil Procedure Rules. If you do not wish to replace them, but you simply wish to understand what steps they have been taking, you can seek accounts and inquiries under the Civil Procedure Rules too.
Be warned though: the court will generally only use its powers to remove an executor and appoint a replacement if:
- they have become ineligible to hold the position (for example, they have been convicted of a crime and sent to prison);
- they have become physically or mentally incapable of performing their duties; or
- they are ‘unsuitable’ for the position.
A court will usually only find ‘unsuitability’ if it is shown evidence of serious misconduct or a conflict of interest. This might include: stealing from the estate; failing to keep accurate accounting records or to comply with a court order; or wasting or mismanaging the estate.
An executor is unlikely to be found to be unsuitable for matters such as being rude to beneficiaries, being slow, or refusing to send you certain documents (excluding an inventory or account).
For more information on any problems with an executor, or any other private client issue, contact Amy Read at WBW Solicitors on 01626 202336 or email amyread@wbw.co.uk.
WBW has offices in Torquay, Paignton, Newton Abbot, Exeter, Bovey Tracey, Exmouth, Honiton, Sidmouth, Launceston, Axminster, Chard and Seaton.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
