Administration Of An Estate – Removing An Executor

Waiting around for an estate to be distributed can be frustrating, particularly as it is often a tough period for your family and going through that legal process takes time. But if you believe the person dealing with the estate (known as the executor or personal representative – terms used interchangeably) is creating delays unnecessarily, or if you are one of two or more executors and one of your companions is being obstructive, you can sometimes take legal action to move things along or consider the process of removing the executor in question.

The role of an executor

An executor has to act in the best interests of the estate and its beneficiaries, and disputes can arise during the administration of an estate. Sometimes a Will is not very clear on what should happen with the estate property, and there can be a difference of opinion between those involved. However, sometimes the Will is not the problem, but the attitude of the executor(s)/personal representative(s). Executors are often beneficiaries too, and this can sometimes create problems when the personal representative wants to remain living in the estate property which can or should be sold. An executor in this situation must do whatever they can to ensure that the interests of other beneficiaries are not compromised, and to avoid frustrating the terms of the Will.

Executors and personal representatives cannot normally act when there is a conflict between their own interests and those of the beneficiaries. If such a situation arises then prior to a grant of probate, a Court application can be made by a beneficiary for that individual to be passed over. Sometimes the named executor will agree, which will make things easier, but if not, both parties should seek independent legal advice. Another family member or friend can act in their place but if this isn’t realistic, then usually someone neutral, such as an independent solicitor, will be appointed.

Removing an executor

Sometimes difficulties only arise after the executor has a grant of probate, and the beneficiaries soon realise that the executor is not going to act in accordance with the terms of the Will, or simply isn’t getting on with the job. If this is having a damaging effect on you or any other beneficiary, there is a way that you can put a stop to it. It is possible to apply to Court to remove that executor under section 50 of the Administration of Justice Act.

Removing an executor is not always easy and the Courts will not take the decision to remove them lightly. The applicant must show that the welfare of the beneficiaries or the administration of the estate is being badly affected by the executor in question. Recent case law has made it clear that “friction or hostility” is often not enough (Newey J in Kershaw v Micklethwaite [2010] EWCH 506 (Ch)).

The Court will also have an eye on the value of the estate – the reason being that if a professional executor ends up taking the reins, they will charge a fee and this will normally come from the estate. It is a balancing exercise – is the threat of damage being done to the estate greater than the cost of putting someone neutral in charge? Another point is that the executor in question has been appointed by the testator, usually after careful thought and taking legal advice and the Court will need to see good reason to go against the testator’s wishes.

Every case is fact-sensitive and if you are in doubt as to where you stand, it is always best to seek advice first.