Can I remove an executor?

The process of probate (dealing with the estate of someone who has died) can be an emotional and difficult time but is sometimes compounded when a dispute arises over the will or with the way it is being handled by the appointed executor. The legal process takes time but if you believe that the executor is being obstructive, dishonest or creating unnecessary delays, you can sometime take legal action to either resolve your differences or remove the executor.

The role of the executor
The person who administers an estate is known as the ‘executor’ or ‘personal representative’ and is generally appointed by the deceased their will. Administering the estate means investigating the financial affairs of the deceased, collecting and distributing the deceased’s assets such as money, investments, land or buildings as stipulated in their will (if they have one) as well as settling any liabilities which may include taxes, debts and funeral expenses.

In many cases, the executor will be a family member or friend of the deceased. However, sometimes a solicitor, will writer or other professional may have been appointed as a professional executor. Professional executors will expect to be paid from the proceeds of the estate for carrying out this duty. They normally carry out the entire probate process and receive a fee for this.

Reasons an executor may be removed
Executors can be replaced if they act irresponsibly and may be held personally liable for any loss suffered. If an executor has wasted the assets of an estate or has made an unauthorised profit, you can bring a claim against them.

Reasons to remove them may include:
• Unnecessary delay in dealing with the estate;
• Selling a property for a lower price than it is worth with no reasonable explanation;
• Failure to properly administer the estate in accordance with the deceased’s will;
• Paying money to the wrong person;
• Dishonesty, including misappropriation of assets;
• Unlawfully transferring assets, including property, to themselves in breach of the self-dealing rule.

What to do if you find yourself with an incompetent / dishonest executor
If you decide that the executor dealing with your loved one’s estate needs to be removed, we can help you. If it is not possible to resolve the dispute through correspondence and negotiations, we would need to make an application to the court on your behalf, which enables you to bring a claim against the executor personally for their removal and for recovery of losses you may have suffered because of their actions.

The Court will consider the application in light of all the surrounding circumstances. This will usually include the relationship the personal representative had with the deceased. It is more difficult to remove an executor who is a direct relation to the deceased, or who is a beneficiary under the will.

Simple dislike or distrust of the executor is rarely, if ever, sufficient to convince the Court to remove them – the underlying presumption will be that the deceased appointed that person because they trusted them and it will need to be proven that they are behaving so badly that that trust was misplaced and the estate is at risk if they remain appointed.

How is a new executor appointed?
If the Court removes a personal representative, someone else needs to be appointed in their place. It is unlikely that the Court would appoint you, or any other interested person, to be the replacement executor and it is therefore necessary to identify a suitable, independent person that you propose be appointed instead. This will often be a professional such as a solicitor or an accountant who would be able to act neutrally and independently.

What will this cost me?
Removing an executor is never a quick or cheap process. There will be court fees, solicitors’ fees and, in the majority of cases, barristers’ fees. It is always important to make sure that the costs you incur do not eat up all of the estate that you are trying to protect.
As in most civil cases, if you win your case, you are likely to get an order from the Court that the executor pays the majority of your costs. However, if you are not successful, there is a risk that you have to pay not just your own legal fees, but also a proportion of the legal costs your opponent has incurred in defending the case.

Get in touch
If you have concerns about the personal representative(s) administering an estate in which you have an interest, our disputes team can provide you with advice on your options. We are experienced in dealing with disputed estates and can give you specialist advice about what to do next. Contact info@penderlaw.co.uk or call us on 01872 241408.

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