Can I remove an executor if they do not distribute an estate?
In a previous article, we looked into what can be done if an executor does not distribute an estate. In this next installment, we go one step further and consider the various options available. Is it possible to simply remove an executor and, if so, what grounds and evidence is necessary?
If you feel an executor is not appropriately distributing an estate, then the first step is to make an application to the probate registry for what is called an inventory and account. The probate registry may be willing to make a penal notice, which means that if the executor does not comply with the order, they could be found in contempt of court, which could be punished by a prison sentence.
It would then be hoped that you no longer need to look to remove an executor as the threat of imprisonment would likely be sufficient to make them provide the necessary information and comply with their duties. However, here are some of the other steps which could be taken if the executor continues to do nothing.
‘Passing over’ the executors before a grant of probate is made
If it does not look as if the executors named in the will are going to take any steps to obtain the grant of probate, it is possible to make an application to the probate registry for an order ‘passing them over’. The probate registry could then appoint the beneficiary, or some other person, as administrators of the estate.
This option is particularly useful where the executors are also beneficiaries and perhaps cannot work together. In these circumstances, if the executors agree to make an application by consent, the probate registry might be willing to appoint an independent executor, usually a solicitor. The executors would then be able to take separate legal advice if they wish.
These applications are usually decided ‘on paper’ which means that there is unlikely to be a hearing before a decision is made.
Should you substitute or remove an executor?
If the executors do not fulfil their duties once the grant of probate has been made, any of the beneficiaries could make an application to the high court for an order to remove an executor. If there is more than one executor, the court could remove one of them, leaving the other in place. Alternatively, the court could appoint a substitute executor or executors.
Importantly, the court does not need to decide that the executor has done anything wrong before ordering that they are removed. It may simply be that the judge is satisfied the relationship has broken down amongst the executors and beneficiaries – even if it is no-one’s fault. However, the applicant would have to show a good reason or the executor might be justified in defending the claim.
Once the application to remove an executor has been made, the high court is likely to list a hearing and it may be possible for the judge to make a decision without hearing evidence from the parties. If there is a substantial factual dispute, the court will list a full trial where the parties would have to give evidence.
The wills, inheritance and trusts disputes team at GA Solicitors in Plymouth is experienced in dealing with a variety of accusations against executors and trustees and, when necessary, applications to remove an executor. If you need expert legal advice then get in touch today by calling 01752 203500 or emailing me directly via matthew.ellis@GAsolicitors.com.
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