Posted: Wednesday, 24 January 2024 @ 10:14
This article explores how to remove an executors of a Will.
What do executors do?
If you are the executor of a will when someone dies you will
have a number of responsibilities including
arranging the funeral
making sure the property owned by the person
who's died is safe
collecting all money due to the estate of the
person who's died
paying any outstanding taxes and debts
distributing the estate to the people who are
entitled to it under the will
Can the Executor of a Will be a beneficiary?
Yes, the Executor of a Will can also be a beneficiary.
It is common for individuals to name a close family member
or friend as both the Executor and a beneficiary when drafting a Will.
However, (legally) the Executor should be impartial and act in the best
interests of all beneficiaries, regardless of whether they will personally
benefit from the estate. This does not necessarily happen.
Can an executor claim expenses?
An executor can claim legitimate expenses from the estate
for their work, such as funeral costs and grant of probate application fees. Unless
the executor is a professional and there is a specific clause within the will,
the executor cannot charge for time. The process of acting as executor should not be a gravy train for the executor.
How soon does an executor have to deal with the Estate?
Generally(but not always) an executor has one year from date
of passing to deal with the Estate - This is known as the "The Executor’s Year." There is some flexibility
to complete the estate administration. The complexity of an estate may justify an executor taking longer than this. If you think a fraud has happened it may justify you doing something sooner to complain as a beneficiary.
What factors will justify a removal of an executor?
The first thing to say is that removing an executor is not
necessarily easy. An executor will be appointed by a Will made by the Deceased
or will be appointed by an intestacy if there is no known will. (e.g by being
the closest living relative). Fundamentally you are asking for Court intervention
to overturn the Deceased’s wishes(this is not a given and the onus is very much on you to prove this).
However there a number of possible facts which can justify a successful removal of executor situation including the following:
· Delay in dealing with the Estate
Putting the executor’s interests before the beneficiaries
The executor taking money out of the Estate(including
before the Deceased died)
Failing to follow the Will such as not giving money to
Getting in a conflict of interest position with
Not selling the Deceased’s property
Failing to communicate
Feathering the executor’s own nest of the nest of
the executor’s family
Living in the Deceased’s property rent free
Not engaging in a positive dialogue with fellow
executors if there any others
Can a Beneficiary
step in as an Executor?
Of course it is one thing to have sufficient grounds to
remove an executor but you need to think about who is going to replace that
executor as the Court needs to be satisfied with your option if we get that far. A beneficiary can step in as executor but we tend to prefer to propose someone independent.
Will you end up going to Court?
Some things which can help avoid this including :
understanding what the executor is up to.( e.g you may dislike the executor and
be concerned about what is going on, but are your fears justified?)
• Ask for
an explanation (If you are worried, why not calmly set our your concerns and see
what response if any, you receive)
• Try to
negotiate with the Executor
• Ask to
see Estate Accounts – you are legally entitled to this if you are a residuary beneficairy, so why not ask?
• Ask the
executor to step down especially if the executor has done no work on the
mediation(if costs allow and no fraud present) e.g get a middle person to sort
• If things
are really not great, instruct a solicitor to write on your behalf to ask what
is going on or to threaten Court proceedings
How much are the legal Costs if you go to Court?
Each scenario is different but if you go to Court it is possible
the costs will range from £10,000 to £30,000 though if you are making the application
you could get those costs either out of the Estate or against the Executor personally. Our firm may be able to
offer a Deferred Payment arrangement too .
Any other tips?
Be realistic and conduct yourself well. Fundamentally
removing an executor is a big step but you may very well have to take this step
otherwise you may never see your inheritance or you will see your inheritance sliced up. Also, issues of your conduct can be of real
significance later. Do not make the removal application at short notice and
think of possible solutions and communicate those solutions. If you act poorly, your behaviour may deny you the right to
recover legal costs from the estate later or against the executor even if you win. Also, read our Guide to Resolving Inheritance Disputes which may help.