At Brown Turner Ross, we take great pride in our reputation as reliable and respected legal advisors and we recognise the importance of all of our clients knowing where they stand legally.
If you have unfortunately experienced the loss of a loved one and you are a beneficiary or co-executor experiencing disputes or difficulties with the executor of a will, you may require legal guidance.
We are here to help. Continue reading this article to find out more about the duties of an executor of a will, and the process of removing an executor of a will.
What is an Executor of a Will?
An executor is an individual designated in a will who is legally responsible for executing the deceased’s wishes as specified in the document. This role involves managing the estate and ensuring that all directives outlined in the will are implemented appropriately.
An executor of a will is usually aware of their role before the deceased’s passing, as the role comes with a lot of responsibility and can be incredibly time-consuming. You can name up to four executors, but it is the standard to nominate just two.
Before you can act as an executor, you are expected to obtain legal permission, known as a Grant of Probate.
The Duties of an Executor of a Will
Before we discuss the process of removing an executor, we should first examine their duties to highlight the responsibilities that come with being an executor of a will.
Locating the Will and Applying for Probate
The executor’s first duty is to locate an up-to-date and valid will. The executor then applies for a Grant of Probate, which gives them the legal authority to manage the deceased’s estate and distribute the deceased’s assets to beneficiaries.
In some cases, the validity of the will may be questioned, and in that situation, the executor may be required to seek legal guidance and handle any disputes that may arise.
Identifying Assets
One of the more difficult tasks that an executor may have is identifying all of the deceased’s assets. This may include but is not limited to:
- Investments
- Bank Accounts
- Property
- Pensions
- Personal Belongings
Once the deceased’s assets have been identified, the executor is tasked with valuing them, which will allow them to determine the overall value of the estate.
Settle Debts and Taxes
If the deceased passed with any outstanding debts, such as loans or credit cards, the executor is required to settle them. This can be a lengthy but essential process.
The executor is also required to calculate and pay any applicable taxes, including Inheritance Tax or Capital Gains tax. HMRC usually outlines the deadline for this task.
Distribution to Beneficiaries
After all debts and taxes have been paid, the executor is responsible for distributing the remaining assets, as outlined in the will.
In most cases, this will require distributing the assets to the beneficiaries, but it may also include selling property or transferring the ownership of assets. Contentious probate issues may arise during this part of the process, highlighting how the role of an executor is not easy.
Keeping Accurate Records
Executors are required to maintain accurate records of all transactions and events during the administrative process to ensure transparency. Beneficiaries may ask for clear accounts of how the assets have been handled, and the executor must be able to provide these.
Acting in Good Faith with Due Care
An executor has a legal duty to act in good faith and with reasonable care. It is essential that the estate is managed without bias and that all involved parties are treated with care.
There can be consequences if an executor does not act as expected, and it is not uncommon for beneficiaries to make an application for the removal of an executor.
Legal Grounds for Removal
Removing an executor is not a decision that is made lightly. The courts will grant removal only if there is evidence that the executor has failed their duties. The primary legal grounds for removing an executor of a will include:
Failure to Administer the Estate
Executors have a legal duty to manage the estate in a timely manner, ensuring that there is no unnecessary delay in the administration process. It is imperative to operate within a reasonable timeframe. Should there be a failure to apply for probate in a timely fashion, such neglect may warrant removal from the position of executor.
For example, if progress takes years, a beneficiary may apply to remove the executor.
Mismanagement of Assets
If an executor handles the estate’s finances and assets irresponsibly, causing financial losses or impacting the value of the estate, they could be removed from the role.
Some prime examples of mismanagement may include selling property below market value, making improper investments, or failing to safeguard valuable assets.
Conflict of Interest
When selecting an executor, it is important to select someone who can act impartially and put the best interests of all beneficiaries first. In some cases, the executor’s personal interests may interfere with their ability to act fairly.
Unfortunately, some will use the position for financial or social gain, and in those cases, the executor may be removed from the role.
Incapacity or Refusal to Act
Circumstances change, and situations may arise when an executor becomes physically or mentally incapacitated and thus can no longer fulfil their responsibilities.
Even if an executor has not been incapacitated, they may refuse to act or fail to communicate with the beneficiaries. This can have them deemed unsuitable.
Breach of Duty or Dishonesty
If an executor is found to be engaging in fraudulent activities, such as hiding funds, falsifying records, or withholding information, they are in breach of their fiduciary duties. Trust is an essential part of the process, and if an executor undermines this trust, they may be removed from their responsibilities.
Failure to Follow the Terms of the Will
When someone drafts a will, they outline strict instructions for the executor, and it is up to that individual to ensure that the executor strictly adheres to these rules. If the wishes of the deceased are disregarded or unauthorised actions are taken, the beneficiaries of the will have the right to challenge the executor or executors.
Unreasonable Behaviour
Unreasonable behaviour is usually identified as an unwillingness to cooperate with co-executors or presenting hostile behaviours that hinder the administration process. If recognised, this type of behaviour can serve as grounds for removal.
The Process of Removing an Executor
Now that you are aware of the responsibilities and commitments expected from executors, you should be aware of the process of removing an executor and alleviating their responsibilities.
Before the process can start, grounds for removal should be established, and these grounds tend to follow what we have previously discussed. If you are in doubt, you can turn to a firm such as Brown Turner Ross, and we will be able to assess whether there is sufficient evidence to justify removal.
Seeking Mediation or Informal Resolution
A solicitor will always suggest that you try to come to an informal resolution before taking legal action, be this through direct communication or mediation.
If you have never undergone mediation before, family mediation tends to be the most commonly used form of mediation, and it is used to outline agreements with the support of an unbiased mediator.
By resolving issues informally, you can save time and money and avoid unnecessary stress.
Applying to the Court
If an informal resolution has not been reached, you can apply to remove an executor.
If someone has been acting as an executor without the granting of probate, an application of dismissal can be made to the Probate Registry.
If the probate has already been granted, you can send your removal application to the Chancery Division of the High Court. During this process, we will always suggest that you seek the support of legal professionals who specialise in will and probates, such as Brown Turner Ross, as we know to prepare you during proceedings. We can provide you with the necessary legal advice.
Remember, you must have the necessary evidence proving that the executor cannot fulfil their duties. Some evidence that you should consider collecting includes:
- Financial records proving mismanagement.
- Testimonies from involved parties.
- Records of communications that highlight delays or misconduct.
Court Considerations
Once the evidence has been collected and submitted, the court will assess whether it proves that removing the executor is in the best interests of the estate and beneficiaries.
The executor can then defend their actions and explain any distinguishable failings. After hearing the executor’s side, the judge must review the evidence and evaluate the executor’s conduct.
Before making their decision, the court will consider the following factors:
- Whether a replacement executor is necessary.
- The impact of the executor’s actions.
- Whether removal is the right response to the situation.
After reviewing the evidence, they will decide whether to remove the executor. If they agree, the executor will be removed, and a replacement will be appointed.
If the courts decide there is insufficient evidence, the executor will remain in their role. If necessary, they may be expected to undergo further training.
What Happens After an Executor is Removed?
If an executor is removed, the next step is to appoint a replacement executor. Usually, this role will be assigned to any co-executor named in the will or a beneficiary who agrees to step up to the role.
When a replacement can not be found, a professional executor may be assigned to the case, such as a solicitor or an independent administrator.
The process can take several months, depending on the complexity of the case.
Get The Advice You Need With Brown Turner Ross
Removing an executor comes with many legal complexities, so we will always recommend that you work with a legal advisor throughout the process. At Brown Turner Ross, we have decades of experience providing legal advice and assistance in preparing for court proceedings for the removal of an executor.
If you need more information or advice, contact a member of our team today. We are here to help you with all of your legal needs.