The Executor of a Will is the person specifically appointed or chosen by the Testator (Deceased) to administer his Estate and to ensure his final wishes are respected. In effect, the Executor speaks for the Deceased in the settlement of his Estate and carries out the instructions set out in the Will. The role of an Executor is an important one and it is advisable and sensible for a Testator to seek the agreement of the Executor before the appointment is made.
The Executor’s duties are defined in what is called “The Executors Oath” and found at Section 25 of the Administration of Estates Act 1925:
a) to collect and get in the real and personal Estate of the Deceased and administer it accordingly to law;
b) when required to do so by the Court, exhibit on Oath in the Court a full inventory of the Estate and when so required render an account of the administration of the Estate to the Court; and
c) when required to do so by the High Court, deliver up the Grant of Probate or administration to that Court.”
On the death of the Testator, all property vests in his Executor, even before he has taken probate of the Will. However, the Executor should generally not act until a Grant of Probate is obtained because he or she does not have official authority until then. Once the Executor or Executors have proved the Will of the Testator, they are entitled to administer the Estate and their duties include the following:
Make funeral arrangements.
Arrange immediate funds for survivors.
Prepare a complete list of all the Deceased’s assets and liabilities as well as their value at the time of death.
Protect all the assets of the Estate against theft, fire, loss and any other destruction.
Advertise for creditors to avoid becoming personally liable for future claims.
Prepare and file Income Tax Returns on behalf of the Deceased.
Before distributing the Estate to the beneficiaries, pay all outstanding debts including funeral expenses, Estate administration expenses and taxes.
Arrange for the distribution of the Estate.
Keep complete and accurate accounting records as the Executor is accountable to the beneficiaries for the assets of the Deceased.
Applying for a Grant of Probate
Applying for Probate includes completing a number of documents, sworn under oath, to be filed with the Court. An application for a Grant of Probate may be made at any time after the Testator’s death, but the grant cannot be issued within 7 days of the death as per Rule 6(2) of the Non-Contentious Probate Rules. Probate can also not be granted to more than four Executors pursuant to Section 114(2) of the Supreme Court Act 1981.
What if the appointed Executor does not want to apply?
Any person entitled to probate may abandon that right by signing a renunciation witnessed by a disinterested witness. A renunciation is a document whereby the Executor relinquishes the title to the Grant. Renunciation must be absolute, that is, without contingency. A renunciation takes effect from the time it is signed but may be withdrawn at any time before it is lodged with the Probate Registry. Once lodged, it may only be retracted with the leave of a District Judge or Registrar.
The renunciation, however, does not confer right to a Grant of Probate on any other person. If it has been agreed that a next of kin will step in and apply for the Grant of Probate, then the person applying for the Grant of Probate may wish to lodge the renunciation document upon application for the Grant. It should be noted that an appointed Executor may only be able to renounce probate if he or she has not intermeddled in the Deceased’s Estate.
What if the named Executor refuses to apply?
Very often, beneficiaries are keen to have the Estate administered as soon as possible. If a named Executor refuses to apply for a Grant of Probate, the beneficiary or next of kin may write to the named Executor and put him on notice that an application will be made at Court, appointing someone else to administer the Estate.
A next of kin or beneficiary is entitled to apply for a Grant of Probate, but this is only permissible by Court Order. If the next of kin does not have a copy of the original Will which is in the named Executor’s possession, then a subpoena must be served upon the Executor to deliver up the original Will within 8 days. After 8 days of the service of the subpoena, the next of kin is entitled to lodge a citation at Court and serve the same upon the named Executor. A citation is a direction issued by the Court requiring the named Executor to either accept or refuse the Grant of Probate.
The citation serves two purposes. Firstly, it directs the named Executor to take the Grant of Probate or to renounce his entitlement to do so. Secondly, if the named Executor fails to apply or renounce, it allows the Court to direct that the Grant of Probate be issued to the next of kin. This allows the next of kin to administer the Estate and acquire his benefit. It should be noted that this form of citation cannot be issued against an Executor who has already intermeddled in the Estate. An intermeddling Executor cannot renounce nor can he refuse to take the Grant. If he refuses to take Grant, the next of kin may apply by summons to the Court for an order directing the Executor to take probate within a specified time or ask the Court to order that a Grant is issued to himself or to another named person in summons.
Once a Court Order is obtained, the next of kin is in a position to apply for a Grant of Probate.
What if the named Executor is not performing his duties correctly?
A beneficiary or next of kin may question the Executor’s actions. If in doubt, the first step is always to write to the Executor and ask him to render an account of the administration of the Estate. If the beneficiary or next of kin is still not satisfied by the Executors’ explanation, then he or she may apply to Court to remove and substitute the Executor.
An attempt by the beneficiaries to remove the Executor is not an easy application. The beneficiaries must prove serious misbehaviour before the Court will even consider forcing an Executor to step down. In general, the Courts will only remove an Executor if the beneficiaries can show the following:
The Executor has become disqualified since the Deceased appointed him;
The Executor is incapable of performing his duties;
The Executor is unsuitable for the position.
Disqualification
An Executor will only become disqualified if he has been convicted of a crime and sent to jail.
Incapable of performing duties
An Executor will be seen as being incapable of performing his duties if the beneficiaries can prove that the Executor has a physical and mental disability, whether the disability is permanent or temporary, which is preventing the Executor from performing his duties.
Unsuitability
An Executor becomes unsuitable to perform his duties if there is either a conflict of interest or some form of serious misconduct. As regards misconduct, this must be very serious in nature, leading to the Estate suffering as a result of the misconduct. The Court is likely to consider the following examples of misconduct:
Stealing from the Estate
Failure to keep accounting records
Failure to obey a Court Order
Wasting or mismanaging the Estate
Misconduct is not always clear and may not always result in removal. For example, the Court is not likely to remove an Executor from his office if he has acted rudely or been unfriendly to the beneficiaries, or if he has repeatedly refused to give the beneficiaries information, or if he has been slow on settling the Will.
How to remove and substitute an Executor
If the beneficiaries have serious concerns regarding the ability of an Executor to perform his duties, the beneficiaries must firstly write to the Executor and ask him to explain his actions. If an explanation is not forthcoming or the beneficiaries are not satisfied by the Executors’ explanation, he or she may make an application to Court to remove or substitute the Executor.
The High Court has a discretionary power under Section 50 of the Administration of Justice Act 1985 to appoint a substitute personal representative or to terminate the appointment of a personal representative. Such an application must be made pursuant to Civil Procedure Rules 57.13. If proceedings regarding an inheritance dispute have already commenced, then such an application is made by application notice. However, if there are no proceedings, then a Part 8 claim needs to be made.
The application must be supported by the following:
A certified sealed copy of the Grant of Probate or Letters of Administration;
A Witness Statement setting out the reasons why the removal or substitution of the Executor is sought (referring to his disqualification, incapacity or unsuitability as per above), particulars of the Deceased’s assets and liabilities, those who are in possession of documents relating to the Estate, names of beneficiaries and details of their interest and the proposed individual to substitute the Executor;
Unless the proposed Executor is the Official Solicitor, his signed or sealed consent to act;
A Witness Statement of the proposed Executor’s fitness to act in such capacity, if he is an individual.
For a no obligation discussion about removing and substituting executors, please contact
Martin Oliver on 01926 880751.
