Can an Executor of a Will be Removed?

An Executor of a Will has a legal duty to administer the deceased’s estate.  They must make sure assets are identified and called in, debts owed by the deceased are paid, any taxes are declared and paid, and the remaining assets are distributed to the correct people according to the deceased’s Will. Executors are expected to carry out their duties with due diligence, acting within the best interests of the estate, and within a reasonable timescale. In addition to these duties, it is also a Beneficiary’s legal right to have an Executor administer the estate is properly.

What Happens if an Executor is Failing in their Duty?

The main problems a Beneficiary may face include the Executor’s unwillingness to act at all or failing to carry out their duties correctly. In either case a Beneficiary may apply to the court to have the Executor removed or substituted. The first steps should be to attempt to communicate with the Executor to resolve any dispute without any court intervention, but if mediation fails then applying to the court for a resolution may be the only remaining option.

What if an Executor Refuses to Act?

If an Executor refuses to take any steps to apply for a Grant of Probate and administer the estate properly, however they also refuse to renounce their role as Executor and allow someone else to act instead, then this leaves the estate in a state of limbo. To resolve this problem, a Beneficiary may apply to the court to issue a citation to the offending Executor. This orders the Executor to either accept or refuse the Grant of Probate. If the cited Executor fails to appear, then all their rights in relation to the Executorial appointment cease. The next person entitled to take out the Grant of Probate can then do so, and administration of the estate can occur.

This form of citation is only possible if the Executor has NOT “intermeddled” in the estate. This is where the person has taken on some of the duties of an Executor such as receiving the deceased’s assets or settling debts.

What if an Executor is not Administering the Estate Correctly?

If a Beneficiary has concerns about the Executor’s handling of the administration of an estate and this matter has not been resolved informally or through mediation, then that Beneficiary may look to have the Executor removed. Removing an Executor is not easy, and each case is specific to its own circumstances. However, what must always be demonstrated to the court is that there are compelling reasons for the removal of an Executor.

Common examples of this are:

• The Executor is unfit or unable to act, possibly due to mental incapacity, imprisonment, or bankruptcy; or

• The Executor is failing to administer the estate properly or failing to progress with its administration; or

• The Executor has committed some serious misconduct that is causing or could cause loss to the estate. This may be stealing from the estate, wasting assets, or acting dishonestly.

A personal disagreement or hostility between the Executor and Beneficiaries is not often grounds enough to remove an Executor. For the courts to consider removing an Executor, the hostility must be so severe that it obstructs the proper administration of the estate as a result.

Powers of the Courts to Remove an Executor

The courts also have a power to remove or substitute an Executor. If appointing a substitute Executor, the courts will often choose to appoint a professional at that point (e.g., an accountant or a solicitor).

The courts may also choose to simply terminate the original Executor’s appointment without appointing a replacement. They will only do this if there remains at least one suitable Executor to administer the estate, or at least two in cases when two are required (e.g., when the sale or transfer of bricks and mortar property is involved).

If you are a Beneficiary of an estate and you are having difficulties with an Executor, your first steps should be trying to communicate with the Executor to resolve the matter informally. If you have concerns about how the Executor is administering the estate, then you should write to them to request that they provide an account of the administration. If you remain dissatisfied thereafter, then you should consider taking further action. If further action is required, then ensure you contact a suitably qualified probate specialist for further advice.

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