An executor of a Will has important duties to perform. They are trusted by the writer of the Will to act in their best interests, and those of the beneficiaries of the Will.
If an executor does not (or cannot) act in the best interests of these parties, they may be sued by the beneficiaries.
This article explains what you should do if you’re the beneficiary of an estate and you believe the executor is not acting in your best interests.
The role of an executor
When a person (known as a testator) makes a Will, they specify a person (an executor) in that Will who should deal with their estate after death. Within a reasonable time (normally six months) the executor must fulfil their duties, which will include:
- Organising the funeral
- Collecting the deceased’s assets
- Selling some or all of the assets if necessary
- Covering the funeral and other costs by making a payment from the estate
- Settling any debts owed by the estate
- Ensuring any necessary taxes are paid
- Applying for grant of probate
- Making sure the beneficiaries get the money or assets they have been promised in the Will.
Remember that the executor owes a duty of care to the beneficiaries and must act in their best interests. For instance, if they have to sell a painting, this would mean getting the best price they can for it, rather than selling cheaply to a friend for a quick and easy sale.
But even if an executor acts properly and has the best interests of the deceased and their beneficiaries at heart, they may sometimes still be removed.
Why might an executor be removed from a Will?
If an executor finds the job particularly stressful, emotional, or simply too complex, they may not be capable of fulfilling their duties and may want to give up their role. If they have no experience of doing such a role and dealing with estate matters, it may be outside of their ability.
On the other hand, the beneficiaries may want to remove the executor because they think that person is not acting in their best interests. Perhaps they think the executor sold assets at below market value to family members.
Finally, the executor might lack mental capacity to do the job, if they suffered a mental illness or dementia or a brain injury, for example.
How is an executor removed?
If an executor doesn’t perform their duties, a judge can remove them. Sometimes the judge will be persuaded to do so by the beneficiaries, if he believes the executor would harm the estate’s interests.
A judge is given power to remove an executor under section 55 of the Probate and Administration Act, if:
- Six months have elapsed from the date of the testator’s death and no application for grant of probate or letters of administration has been made
- A grant of probate application was made within the six-month time period but the application was refused, discontinued, or withdrawn
- The grant of letters of administration has not been extracted.
Alternatively, one of the following situations may happen:
- An executor might choose to expressly renounce their appointment. This must be done at a hearing they attend, or in writing, either by the executor or their lawyer, who will attest the renouncement.
- An executor’s appointment might be constructively This happens when the executor is deemed to have renounced their role but has not done so explicitly. (Beneficiaries can choose to issue something called a citation – this is used to require the executor to either accept or reject their right to the grant of probate or the letters of administration. They will lose this right if the executor appears in court but doesn’t apply for the grant of probate or letters of administration.)
- An executor’s appointment is renounced if there is a successful challenge to the validity of the Will. Such a challenge can usually be brought by anyone with a valid interest in the Will. If the Will is ruled invalid, it cannot be followed. The intestacy rules then take over and these dictate how the deceased’s estate should be managed. (Note: beneficiaries should use caution when contesting a Will; they may lose their right to inherit or see their share reduce.) If a substitute executor is appointed in the Will, they will then be given the duties that the first executor had. If no substitute is named, a new executor will be appointed by the court.
Filing a caveat
A caveat is something that stops a grant of probate or letters of administration from being issued. The person who filed the caveat must be notified before either of these can be issued. The people who applied for the caveat (known as the caveators) will have a chance to contest the probate application for a grant.
If beneficiaries are worried as to whether someone has the right to apply for probate because of the executor’s suitability, or because they think the Will is invalid, they can enter a caveat.
Likewise, if someone has an interest in the estate, and they are affected by the grant of probate, they may apply for a caveat.
The aim of the caveat is to give the caveators time to investigate their situation and assess whether they have proper grounds for opposing the grant of probate. Caveats also give other people with interests in the estate a chance to ask questions to the court about the grant.
A caveat also represents a preliminary step towards a probate claim or to issue a citation, for example to constructively renounce an executor’s position.
What’s the difference between Grant of Probate and Letters of Administration?
If there is a valid Will with named executors to administer the estate, a grant of probate is issued.
If there is no valid Will, or no executors want to administer the testator’s estate, then a grant of letters of administration issued.
Both of these grants have the same legal power and importance, but a different process is used to obtain each.
Executor and beneficiary disputes
Sometimes, disputes can arise between a deceased’s family members and beneficiaries. Alternatively, there might be disagreements between co-executors, or between co-executors and beneficiaries.
Regular and prompt communication with all parties involved is vital to avoid such disputes. Be mindful that an executor has to administer the estate within six months.
Unfortunately, executors sometimes mismanage an estate, either on purpose or through negligence. This causes frustrations for all involved, especially if it results in monetary loss. In some cases, the beneficiaries may even sue the executors.
At the first sign of dispute, seek legal advice as soon as you can – it may help to prevent delay and extra costs.
We can help
Our law firm can help you make a court application to remove executors from a Will, or contest a Will.
If you need help in avoiding disagreements amongst beneficiaries or co-executors, then contact our expert probate lawyers, who will help you with estate administration.
We have spent many years helping executors to navigate the process of probate and carry out their responsibilities. Engaging a lawyer ensures the process is as quick and stress-free for you as possible; not only will you feel assured that you’re doing the best for all parties at the highest standard, but you’ll minimise your chances of being sued because of mistakes or delays.
You can also speak to us if you want to get more information on removing an executor from a Will.