2020-05-22
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Removing and substituting executors

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Posted by Martin Oliver on 04 April 2013

Martin Oliver - Contesting a Will Lawyer
Martin Oliver Partner

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,. It is advisable for someone making a will to seek the agreement of the executor before the appointment is made to avoid any conflicts in the future or any claims to contest the will.

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:

  1. to collect and get in the real and personal estate of the deceased and administer it according to law;
  2. 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
  3. 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 person who made the will, 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 several 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 seven 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 under 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 the 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 inter-meddled 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 (a writ ordering a person to attend a court) must be served upon the executor to deliver up the original will within eight days. After eight 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 inter-meddled in the estate. An inter-meddling executor cannot renounce nor can he refuse to take the grant. If he refuses to take grant, the next of kin may apply by a 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 a 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 the 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:

  1. the executor has become disqualified since the deceased appointed him
  2. the executor is incapable of performing his duties
  3. 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:

  1. stealing from the estate
  2. failure to keep accounting records
  3. failure to obey a court order
  4. 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 first 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 the 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 according 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:

  1. A certified sealed copy of the grant of probate or letters of administration.
  2. 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).
  3. Particulars of the deceased's assets and liabilities, those who have documents relating to the estate, names of beneficiaries and details of their interest and the proposed individual to substitute the executor.
  4. Unless the proposed executor is the official solicitor, his signed or sealed consent to act.
  5. A witness statement of the proposed executor's fitness to act in such capacity, if he is an individual.

Changing executor of a will after death UK 

Controversially, a person making a will does not have to seek the proposed executor's permission or agreement to naming them in their will as their executor. After a person has passed away, if the executor, for any reason does not want to be an executor and has not dealt with the estate in any meaningful way ('intermeddled'), they may renounce their position by way of a formal Deed of Renunciation or form PA15. This form is required to be signed and witnessed by an independent witness. Once executed, it must then be lodged at the relevant Probate Registry. The Deed of Renunciation is effective from the date that it is signed. If there are other executors named in the will, they will act in the role without the renouncing executor; likewise, there may be substitute executors appointed who can then act. If no other executors were appointed, the 'non-contentious probate rules 1987' outline who can act in the role, in order of priority, starting with the residuary beneficiaries. 

How to remove an executor from a will

There are many reasons why you might consider seeking legal advice to remove an executor of a will. In general terms, this will usually be because they are refusing to act or otherwise not performing their duties correctly. If the person named in the deceased's will does not want to be an executor and has not 'intermeddled' in the estate, they may abandon the position by formally renouncing. This involves signing a legal document and lodging it at the Probate Registry. Ultimately, if renouncing is not an option for whatever reason, an application must be made to the court to remove an executor of a will. An application to the court should be seen to be a last resort, and it is essential to try and resolve the issue without court intervention. For example, it is sensible to communicate with the executor and put them on notice that an application to court will be made. If all other avenues have failed, an application to court could be made. These types of application are difficult, and a court will not remove an executor lightly because they will have respect for the deceased's wishes in appointing them. 

In general, the court will only remove an executor if there is evidence of the following:

 

  1. The executor has been disqualified since the deceased appointed them, i.e. has been convicted of a crime and sent to prison;
  2. The executor is incapable of performing his duties, e.g. a mental or physical disability, whether permanent or temporary, which is preventing the executor from performing his duties; and 
  3. The executor is unsuitable for the position, e.g. stealing from the estate, failing to keep accounting records, failure to comply with a court order etc. 

If the court is satisfied with the evidence provided, it has a discretionary power under section 50 of the Administration of Justice Act 1985 to appoint a substitute executor or to terminate the appointment of an executor. Often a professional executor is appointed in substitution to avoid the potential for a further family dispute. 

Application to remove an executor

An application can be made using either a court process, by issuing a claim, or by making an application to the Probate Registry. There are advantages and disadvantages to both options. Still, most often the course of action will be determined by whether the executors have taken any steps to administer the estate and if so, what steps. For example, if action and a Grant of Probate has been extracted, it will be necessary to issue a claim at court to remove an executor; even if that is being done by consent. Conversely, if no steps have been taken at all, an executor can be invited to 'renounce' their position, that is to say, step down from the role.

Applications to remove executors typically involve replacing the 'problem executor' with another person, most often someone who is independent. There are special rules which apply where any beneficiaries of the estate are children, or where there is a trust which is established; in those circumstances, there must be more than one executor in place. Usually, the people who are executors are also trustees of any trusts established in the will. Therefore, if an application to remove an executor is made, the correct number of executors must ultimately be in place so that the estate can be administered appropriately.

Executor misconduct in the UK

Executor misconduct in the UK takes a variety of forms; the most common examples are where the executor fails to remain neutral and acts for his or her benefit, and where an executor fails to account to the beneficiaries of an estate adequately. It is easy to see why an executor may find it challenging to remain neutral when they have an interest in an estate asset. For example, if the deceased owned a business at which the executor works and from which he or she derives their income, but the deceased's will gives that business to a third party or requires it to be sold, it clear that those circumstances could cause a conflict of interest; the executor would want to protect their livelihood while in their role as executor, they must act in accordance with the deceased's will (or the intestacy rules).

In other cases, executors might fail to account for all of the estate assets or not provide accounts at all. When applying for a grant of probate, which is ordinarily needed to enable the executor to deal with the estate assets, part of the document which is submitted to the Probate Registry confirms that an account will be delivered up to court should it be requested. This, therefore, means that if an executor refuses to produce an account, action can be taken through the court to secure that account.

What happens when a co-executor dies?

As a person can write a will at any point during their lives from the age of 18, naturally, an anticipated co-executor can pass away before the person who made the will. If a co-executor passes away before, the remaining executor(s) will continue their duties. Likewise, an executor may have appointed a substitute in their will who will then take up the role.

If the co-executor dies after the grant of probate has been extracted, and once they have accepted the position, if the executor has left a will of their own, they will have appointed one or more executors in their will, who, in turn automatically become responsible for completing the administration of the original estate, together with the other executor(s). This is known as the chain of representation. If the original executor has died intestate, the Non-Contentious Probate Rules 1987 apply to establish the order of entitlement to act as administrator. A grant of letters of administration de bonis non administrates is (a legal term for assets remaining in an estate after the death or removal of the estate administrator) required in respect of the administered estate. 

Can an executor override a beneficiary

In short, yes. The executors are legally responsible for the administration of the estate, and they are the people who make the decisions concerning that, so the executor has the control and the decision making authority. However, they have duties to do act in the best interests of the beneficiaries, to take into account the wishes of the beneficiaries and are accountable to them. If a beneficiary is not happy with the conduct of the executor, it may be that they can seek their removal. 

Challenging an executor

Executors must act together; there is no way by which a majority can make a decision when it comes to executor appointments. This, therefore, means that challenging an executor can be done by both co-executors and beneficiaries to an estate. Where there is more than one executor and the way forward cannot be agreed, directions can be sought from the court. If one of the executors is, however, acting unreasonably, an application can be made to remove than executor (and possibly appointment a replacement if needed). This is not a decision the court will take lightly, but it is necessary to ensure the estate administration is dealt with correctly and in a neutral manner.

Where beneficiaries want to challenge an executor, if that is on account of the executor not complying with his or her duties, it may be possible to make an application to have that executor removed. In circumstances where the executor has not necessarily acted wrongly, but all of the beneficiaries agree that they do not want the appointed executor to act, they can request that the executor consent to being removed or, if it is early enough in the estate administration process, seek an agreement that the named executor does not take up the appointment.

Duties of an executor

Executors have overriding duties to administer the estate in a timely manner and in doing so to act in accordance with the law and the terms of the will and in the best interests of the beneficiaries. 

Duties involved in administering an estate include, but are not limited to, the following: 

  • Making funeral arrangements;
  • Preparing a complete list of all the deceased's assets and liabilities as well as their value at the time of death;
  • Protecting all the assets of the estate against theft, fire, loss and any other destruction;
  • Advertising for creditors to avoid becoming personally liable for future claims;
  • Preparing and filing income and capital gains tax returns on behalf of the deceased to the date of death and for the period of the estate administration;
  • Preparing an inheritance tax return and applying for a grant of probate in the estate (which is the proof of their legal authority to administer the estate);
  • Collecting in the assets of the estate to include closing bank accounts, selling shares and properties;
  • Before distributing the estate to the beneficiaries, paying all outstanding debts including funeral expenses, estate administration expenses and taxes;
  • Arranging for the distribution of the estate; and
  • Keeping complete and accurate accounting records.

How can we help?

  • If you are concerned that the executors are not acting in accordance with their responsibilities or the deceased's wishes, talk to us.
  • We will listen to your concerns in complete confidence, and this initial discussion will be free of charge. 
  • We will be honest with you about the likely costs of contesting a will and will advise you if a legal route is the best way to resolve the issues you are facing.

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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