When creating or updating a will, it's common for the estate owner to appoint an executor to represent them after their passing. The executor's role is to administer the estate, ensure all the assets are distributed according to the owner's last wishes, settle any debts and property taxes, and handle necessary legal or financial matters.
However, there are unfortunate instances where the will's beneficiaries may spot a red flag regarding the executor’s actions or behaviour, thus leading to a call for dismissal. This article offers a detailed guide on how to remove an executor from a will if they fail to fulfil their duties or act against the best interests of the estate.
Additionally, this guide will also cover:
The steps to remove an executor from a will
What could constitute executor misconduct in the UK
The cost of removing an executor
What Are the Grounds for Removing an Executor?
You must have valid, legal reasons for the removal of an executor. This section will cover some common reasons for executor removal.
1. Disqualification
A criminal record is a valid ground for an executor's removal. For example, if the executor has been sent to jail to serve time for offences like fraud, embezzlement, or other serious criminal activities, there could be doubts over their ability to manage an estate, hence their removal.
2. Incapacity
If beneficiaries can also prove that the named executor is not physically sound and they can’t think for themselves anymore, probably due to mental issues, they can file for the removal of such an executor. Please note that this removal motion can only be successful if the beneficiaries have solid evidence, such as doctor’s reports or medical evaluations, that indicate the executor's inability to fulfil their duties.
3. Unsuitability
Beneficiaries can also file for the removal of a named executor if they can prove that the executor is not suitable to administer the estate due to various forms of misconduct that include:
Misappropriation of funds: If an executor is found to have stolen money from the estate, this is a clear indication that they may be unsuitable to administer the estate.
Fraud or dishonesty: If the executor is guilty of getting involved in fraudulent behaviour or dishonest actions, such as falsifying documents or stealing estate funds, such an entity could be deemed unfit to administer the estate.
Failure to Communicate: Executors are not only named to distribute properties to beneficiaries; they also have the legal obligation to keep beneficiaries informed about the status of the estates. If, for whatever reason, the executor becomes unresponsive or fails to provide updates, they could be deemed unfit to fulfil their executor of will responsibilities.
Disobeying court orders: If an executor disobeys a court directive, the beneficiaries could also flag him as unfit to administer the deceased estate.
Self-Dealing: Another valid claim for removal is when an executor takes advantage of their position to enrich themselves at the expense of the estate or its beneficiaries. As a beneficiary, if you have evidence of this, you may file a separate civil lawsuit against the executor after they have been removed.
Step-by-Step Process for Removing an Executor
Removing a will executor is not as easy as it sounds simply due to the legal implications, as well as the time and money the process will consume. That is why it is always advisable to first ask the problematic executor to relinquish the role before eventually resorting to legal recourse.
However, if you cannot resolve this privately, you can pursue legal action against the executor. Below are the steps to follow to remove an executor in the UK:
1. Request an Account of the Estate
To remove an executor, the first step you would need to take is to write a formal letter to the executor and request a detailed account of the estate’s administration. When the executor replies, you would need to be on the lookout for important details like:
Accuracy of the asset inventory: You need to check if the estate numbers that the deceased indicated in his final will are still complete.
Debts and liabilities: You must verify if all outstanding debts and taxes the estate incurs have been duly paid.
Estate expenses and cost of management: It is also pertinent that you check the expenditure part of the review to see if the money that the executor has taken out from the estate to manage it has been inflated.
Requesting an account of the estate is a great way for executors and beneficiaries to resolve misunderstandings and other issues without court intervention.
2. Apply to the Court for Removal
If the first step fails, the next thing would be to file a petition to remove the executor from the probate court. Under Section 50 of the Administration of Justice Act 1985, beneficiaries in the United Kingdom can apply to the High Court to remove the executor. Typically, the application must include:
A witness statement documenting the reasons for removal, including incidents of misconduct, incapacity, or unsuitability.
A copy of the deceased’s will.
A copy of the grant of probate, if applicable.
3. Court Consideration
After the petition has been submitted, the court will review it and determine if all the evidence you submitted is enough to get the executor removed. Ordinary altercations between executors and beneficiaries are insufficient to make the court remove the executor; instead, you need solid evidence to back your claim.
Also note that while you may have legitimate reasons for wanting to remove an executor, courts are generally hesitant to grant these requests. This reluctance can be understood from two perspectives:
First, courts prefer not to intervene in estate matters unless the issues are serious.
Second, judges often aim to respect the deceased's wishes, as the estate owner likely had personal reasons for appointing the executor.
4. Court Decision and Costs
If the court accepts all the evidence you provided and agrees to dismiss the problematic executor, the next step would be to appoint a substitute executor to oversee the will's execution.
If you are a beneficiary in the UK, the High Court has the authority, under Section 50 of the Administration of Justice Act 1985, to appoint a substitute personal representative or to terminate the appointment of an existing executor. The newly appointed executor will have the same power and responsibilities as the previous executor.
Best Practices for Beneficiaries
Filing a petition to remove an existing executor is not easy. However, beneficiaries can follow these best practices to strengthen their position and make the entire process less exhausting.
Maintain Records
Since executors are always appointed by the estate owner, it is always hard for beneficiaries to know for certain how the executor will manage the estate's assets. So, be on the safe side; it is essential that you properly document every discussion you ever had. For example, you need to have on record:
Every note you took while you were in meetings
Recording of phone conversations and call logs
Emails that document your concerns about the estate's administration.
Having all this evidence will aid your application if you request the court to remove the executor in the future.
Seek Legal Advice
Before initiating court proceedings, you should seek legal advice. A solicitor with expertise in probate law can help you assess the strength of your case. They can also give you insight into the type of evidence you need to submit alongside your petition. Lastly, solicitors can also help you explore alternative resolutions, such as mediation, before court.
Legal and Regulatory Considerations
In the UK, section 50 Administration of Justice Act 1985 is the legal framework within which concerned beneficiaries can seek the removal of an executor. That is either slow, shady, uncooperative, hostile or downright dishonest. This act empowers the High Court to
Remove an executor (also called an existing personal representative) and replace it with a substitute executor (substituted personal representative) if the existing one is not acting in the estate's and its beneficiaries' best interests.
Remove the problematic executor from the list of executors, provided the estate owner appoints more than one executor. In a case like this, the responsibilities of administering the estate will automatically fall to one of the existing executors.
The court has discretion regarding costs in these matters. If an executor is removed due to improper actions, they may be ordered to cover the legal fees incurred by the beneficiaries. However, if the executor acted in good faith but was ultimately removed, the court may order that costs be taken from the estate instead.
FAQs
How can I remove an executor who is not performing their duties?
If the executor of a will you are beneficiary from is not performing their duty, you can remove them in legal and non-legal ways. You may simply need to have an open conversation with the current executor and request that they step down due to their inability or unwillingness to effectively manage the estate.
If the non-legal method fails, you can petition the High Court while providing evidence of misconduct or incapacity. If the evidence is overwhelming, the court, under Section 50 of the Administration of Justice Act 1985, will remove the current executor and replace with a substitute executor.
What are the legal grounds for removing an executor?
Executors may be removed for reasons such as unsuitability (misbehaviour or inability to manage the estate appropriately), disability (mental or physical), or disqualification (e.g., criminal conviction).
Can You Remove an Executor From a Will Before Death?
You can change an executor from a will by filling out a Codicil document. You’ll be required to add a new clause which replaces the existing one with the name of the executor. Two people will need to sign the Codicil.
How long does the process of removing an executor take?
The time frame for removing an executor, especially if it goes to court, can vary widely depending on several factors that include complexity, court scheduling and how cooperative the executor is.
Can I appoint a new executor if the current one is removed?
Since you didn't create the will, you cannot appoint a new executor. Instead, the court will be responsible for appointing a new executor who will take over the responsibilities of administering the estate.
Will the executor be liable for costs if they are removed?
If the court believes that the executor acted inappropriately, they may be required to pay the beneficiaries' legal costs. However, if they behaved in good faith, costs may be deducted from the estate.
Conclusion
Removing an executor can sometimes be long and tiring, especially if it goes to court. However, if you follow all the steps outlined in this guide and involve a legal expert to guide you, your chances of a successful outcome will be significantly higher.
If you are a beneficiary of a will in the UK and you need personalised guidance on dealing with problematic executors and resolving other related estate disputes such as will disputes, our probate solicitors here at Lawhive can help. Contact us today for a free case evaluation.