Posted: Friday, 4 January 2019 @ 13:43
One of the problems which some beneficiaries have on dealing with an estate is when the named executor(s) of the will fails to do his or her job correctly.
Not only do you have a sad situation of someone being deceased but now the named executor is making matters worse by being lazy and/or incompetent.
What can be done?
By law, executors and administrators of an estate have an overriding duty to collect in the estate and administer it correctly under s. 25 Administration of Estates Act 1925.
Therefore, if things are not working out entirely to plan, you can consider a number of courses of actions…. (Please note this list is not exhaustive, and there are other options but here are my favourites....) Option 1 - Write a Warning Letter
A solicitors' letter or one from you can have the desired impact. Sometimes they do work and scare/move the errant executor into more sensible actions.....Option 2 - Propose Mediation
If this does not work, sometimes the carrot of mediation can have the desired impact. The Courts like mediation and tactically it can be a good thing to propose. Mediation does lead to a ongoing solution in the majority of cases. Options 3 – Issue A Caveat
Often a sensible first step in preventing a grant of probate to an unsuitable executor is to enter a caveat, since it generally prevents a grant being made in respect of an estate. It stops the probate process. Unless warned, caveats generally remain in force for six months, until the Court registrar orders otherwise, although they can be extended for subsequent periods.
Current fee £20.
This is a bit more pressure being applied on the executor and forces him or her to take notice. Have to consider this carefully as it can make the executor pretty angry. Sometimes this is necessary though.
Option 4 - Request An Inventory and Account
A (relatively) quick way to compel a lazy or unhelpful executor to account for his activities is to apply for an order that he/she exhibits an inventory and account in respect of the administration.
This should be done by applying to the Probate Registry by a claim form supported by an affidavit. Once obtained, the inventory and account can be examined by the beneficiary in order to assess whether any further steps are needed in respect of the executor. This may or may not do the business.
If the four options above do not achieve the desired result, then it would seem that fun and games are order of the day and we have to consider option below….Option 5 -Section 50 Application
The beneficiaries of the will/estate could consider applying for the executor to be removed or replaced under section 50 of the Administration of Justice Act 1985.
By law the court will generally replace an executor where, for example, relations between him/her and the beneficiaries have simply broken down to such an extent that it is no longer possible to progress the administration of the estate properly.
Each case will turn on its own facts and there must be pretty good grounds that would adversely affect the administration and the welfare of the beneficiaries.
Generally, bad relations alone will not usually be enough.
The court will consider both the fact that the person making the will has chose their executor, therefore upholding the principle of testamentary freedom, and the costs of removing and replacing them.
A potential applicant must consider whether it would be a proportionate cost for the estate to meet.
Frankly Option 5 is the last resort for the beneficiary of a will but if an executor is not playing ball and determined to cause mischief, what other recourse does he or her have?