Posted: Friday, 4 January 2019 @ 13:43
Dealing with a difficult executor is not easy but one of my favourite legal steps for addressing this is the court action of a request for inventory and account from the executor.
The application seeks to force the executor to disclose information and documents(such as bank statements) which gets the executor to reveal what is in the estate of the deceased.
It is done by preparation of a summons together with a supporting affidavit and will be heard at the Probate Registry.
Recently I was at a probate court and obtained an order for inventory and account against an executor together with an award for costs.
Please note that the application can only be done if probate has been obtained by the executor.
There are a five key reasons why the application is appealing for a disgruntled and frustrated beneficiary.
1. It is a relatively low risk application. Unlike other court actions such as removal of executor which are not certain to win despite the evidence, it is a relatively risk free court step and clearly defined. As a consequence, there is little downside in making the application and less stress for the client to go to Court.
2 It will obtain useful information whatever which in itself is useful and can provide a springboard for further steps to be taken against the executor. One of the frustrations of dealing with an executor is that there is no obligation to disclose until the end of the process when estate accounts are produced. Here the executor has to provide the information and you see a paper trail. If something dodgy is going on, you should find out. If not, you have not necessarily wasted time on other expensive legal action.
3 You should get the Court date quickly. As the application is fairly short you do not have to wait a long time(e.g more than nine months to get a final court date) to go before the Judge. Resolution is relatively quick.
4. It is not expensive. Unless you and your solicitor want to burn money the Court step is not that costly and does not have a large Court fee as well. All you have to do is pay for are the legal fees and an affidavit to be sworn infront of a solicitor( say £10). Compare that to other court steps in an era when there is a deliberate strategy from the government to get money in via court fees.
5. It shifts psychological power away
from the executor and to the beneficiary. Whenever I have used this application with success(and it has always been successful for me), it has shifted the inter-play with the executor and put him or her on the defensive. No executor likes to disclose bank accounts and/or have costs awards made against him or her. Here the executor finds himself under pressure and subject to potential scrutiny from the Judge. If you have done something dodgy or have something to hide, you do not like this despite the targeted nature of the application.