How to remove a personal representative… and how not to!
The court has the power to remove and replace a personal representative (PR) if there is sufficient cause. The individual seeking the removal must demonstrate that it is in the best interest of the estate. This could be for causes ranging from mismanagement, breach of a fiduciary duty, embezzlement of funds, neglect and incompetence down to a breakdown of the relationship with the beneficiaries.
Below we have provided a few pointers as to how to seek removal of the PR, things that need to be considered, as well as actions to avoid.
- It is unnecessary to find fault with the PR themselves, instead concentrate on whether the administration of the estate has been carried out properly, and whether it is in the best interests of the beneficiaries to replace one or more of the PRs.
- In the event that there is wrongdoing or fault that could endanger the estate it is likely that the court can be persuaded to remove and replace the PR unless, of course, the indiscretions are very minor.
- The wishes of the testator concerning the identity of the PR, as reflected in their will, will remain a key factor in any decision making by the court.
- The wishes of the beneficiaries may also be relevant to the court’s decision. However this is only if appropriate and it will take a broad view about what is in their interests as a whole. This is of particular importance where there are competing points of view among them.
- Consider whether it has become impossible or difficult for PRs to complete the administration of the estate or administer the will trusts. The court must review what actions have been done thus far and what remains to be undertaken. A breakdown of the relationship between some or all of the beneficiaries and the PRs will not be sufficient on its own to justify their replacement. If however the breakdown makes the task of the PRs difficult or impossible, removal followed by replacement may be the only option.
- The cost of replacing some or all of the PRs, particularly where it is proposed to appoint professionals, is a material consideration. The size of the estate and the scope and cost of the work which would be needed will be considered as part of the decision.
- The proposed replacement PR must demonstrate their suitability for the position and provide signed consent to act with written evidence relating to their fitness. It is particularly useful to have a statement outlining their own virtues, abilities and experience to act as a PR and trustee. A character witness should deal with these same issues and detail how they know the proposed replacement, how long they have known them and on what basis they can give an independent view as to their qualities and merits.
- Don’t make the removal personal – things can get very costly as a result. In seeking the removal and replacement of a PR it is best to stick to the relevant issues, as set out in this article, rather than using a scattergun approach and raising subjective, inaccurate or irrelevant issues. These could potentially lead to the court making a personal costs order against those at fault.
We appreciate that this can be a complex area and we are able to offer guidance on this and any other related contentious trust or probate issues.
Please contact one of the contentious probate team on 01752 203500 to see how we can help.