Contentious Probate: Problems with Executors and Administrators?

If you are a beneficiary of a Will or estate you may find yourself frustrated with the Executor or Administrator because they are failing to take action within appropriate time frames or sometimes they are failing to take any action at all.

There may also be circumstances where they are taking action but you feel that they are not protecting the interests of the estate and the beneficiaries or you may suspect that they are being dishonest. The actions that you can take will depend upon whether a Grant of Probate or Letters of Administration has been obtained and the steps that they have taken to date.

Where there is no Grant of probate or Letters of Administration

If an Executor has failed to apply for a Grant of Probate then they may decide that they actually don’t want the responsibility of being an Executor and would like to renounce this. If they haven’t inter-meddled in the estate then they would be able to do this. Inter-meddling is generally considered to be taking steps to collect in the Deceased’s assets, paying the Deceased’s liabilities or paying any sums due to beneficiaries. However arranging the funeral and securing goods within the estate is not considered to be inter-meddling.

However renouncing can only be done willingly. If the Executor or Administrator is not willing to renounce but is still failing to proceed with administering the estate you may want to issue a Citation.

A Citation will require an Executor or administrator to accept or refuse the Grant of Probate within a set time frame and if they fail to do so they will lose their rights to be appointed as Executor or Administrator. If the Grant of Probate is not accepted then this will mean that another Executor, or if there are no other Executors, the next of kin can apply for this.

Where a Grant of Probate or Letters of Administration has been issued

The issue is more complicated once the Executor or Administrator has been appointed as they can now only be removed by order of the court.

As the Executor is the person chosen by the Deceased to administer the estate the courts will only remove them with good reason.

Generally the courts will only remove an Executor if:

  1. They have become disqualified since the Deceased appointed him. Usually this is only if he has been convicted of a crime and sent to jail.
  2. They are incapable of performing their duties. This is usually where the beneficiaries can show that the Executor has a physical or mental disability which prevents him from performing his duties.
  3. They are unsuitable for the position.

Is the Executor unsuitable?

The issue of whether or not the Executor is unsuitable is the most complicated one. As the Executor was specifically appointed by the Deceased the court are generally unwilling to remove an Executor for being rude, refusing to provide information or being slow in administration of the estate.

Generally in order to remove an Executor on the basis that they are unsuitable you will need to show that there has been serious misconduct or that the Executor is conflicted within their position.
Misconduct is considered to be:

  1. Failing to keep accounting records;
  2. Failure to comply with a court order;
  3. Stealing from the estate; or
  4. Wasting or mismanaging the estate’s assets.

In order to have an Executor of Personal Representative removed you will need to make an application to the High Court under Section 50 of the Administration of Justice Act 1985.

However before doing so, and in order to protect your own position, you should speak to a professional regarding the conduct of the Executor and the best way to proceed.

If you would like to discuss your responsibilities as an Executor or Administrator or the behaviour of an Executor or Administrator please contact Louise Sackey on louise.sackey@elselaw.co.ukor 01283 526235.

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