Is it possible to remove the executor appointed in somebody’s Will, after their death? The executors of the Will are under a duty to wind up the deceased’s estate, to obtain a grant of probate or letters of administration if appropriate, and and in general to carry out their duties carefully, following the terms of the deceased’s Will or the laws of intestacy. However, not uncommonly beneficiaries have concerns about what is happening with a probate. They may feel that the executor is delaying winding up the estate, or completely failing to carry out their duties. Clients regularly tell me about this type of situation occurring in their own families. This usually comes up where a former family home needs to be sold or transferred following a death, but a family member is still living there and refuses to move out to allow the estate administration to be completed. This puts the rest of the beneficiaries in a very difficult position.
How long should probate take?
It is worth bearing in mind that the probate process is a leisurely one, and realistically even in a fairly straightforward estate, although it may be possible to obtain a grant of probate in 2-3 months (Covid delays permitting), by the time the tax and the estate accounts are finalised it can easily take a full year to wind up an estate properly. This is why there is enshrined in law what is known as the ‘executor’s year’, which is considered to be a reasonable time period following the death before the executor is obliged to pay out any legacies mentioned in the Will. If the legacies are not paid within a year then interest on them will start to run. I always remember a beneficiary many years ago who – upon learning that he was to receive an inheritance – dashed straight out and bought himself an expensive Land Rover. He then proceeded to ring me up daily for months to remonstrate about the fact that as yet no money was yet available in the estate to cover the hefty bill! It’s important to be realistic about likely timescales.
How to remove an executor
In short, if you are concerned that an executor is not doing his or her job, the first step should be to contact the executor and try to communicate to resolve the problem. If that fails, another option is mediation, failing which in the most extreme cases beneficiaries can apply to court to have an executor removed or replaced with someone else.
There are two possible scenarios here – first, the executor is not taking any steps to obtain a grant of probate and to wind up the estate, but they refuse to renounce their role. In that case, a beneficiary can apply to court to issue a ‘citation’ to the executor. This orders them either to carry out their duties or alternatively to renounce their role in favour of someone else. If the executor fails to appear once they have been cited then their rights in relation to the estate come to an end and the next person who is entitled to do so can apply to be appointed as executor in their place, and can then wind up the estate.
The other – perhaps more typical – possibility is that the executor may already have have carried out certain tasks (known as ‘intermeddling’) in the estate, before grinding to a halt. The applicant needs to demonstrate to the court that there are compelling reasons to remove the executor. For example, the executors and beneficiaries have fallen out so badly that it is obstructing the estate being wound up; perhaps the executor has been imprisoned, made bankrupt or has lost mental capacity; they may be failing to do their job and progress with administering the estate or may even be stealing from it, wasting the assets or otherwise acting dishonestly.
In either scenario, the first step should be for the beneficiaries to contact the executor to try to resolve the matter amicably and allow the estate administration to proceed in a timely fashion. If you are a beneficiary and you have concerns, you should write to the executor and ask them to provide an account of the progress to date. If you are unsatisfied with their answer, or you do not receive one, you may then wish to consider taking further action to remove the executor. You can also make a few discreet enquiries about progress from other sources – details of how to do so are here.
Powers of the Courts to remove an executor
If a grant of probate has not yet been issued, under s.116 of the Senior Courts Act 1981 the court can pass over en executor and appoint an administrator to act in their place. A court also has power under s.50 of the Administration of Justice Act 1985 to remove or replace an executor. Any replacement is then often a professional executor. Alternatively, the court can terminate an executor’s appointment without appointing a replacement, if there is a remaining executor still acting who is able and willing to do the job.
Chiltern Wills is a boutique Will writing business based in Beaconsfield and run by former London solicitor Rebecca D’Arcy. For a free, no-obligation discussion about how we can help you with Wills, powers of attorney, probate or estate administration, call us on 01494 708688 or email rebecca.darcy@chilternwills.com.
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