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What Can Be Done About Problems With the Executor of a Will ?

10 July

What Can Be Done About Problems With the Executor of a Will ?

We’ve had a number of people contact us recently looking for advice because they are worried that an executor is not doing their job properly or is taking too long to deal with an estate.

The first question is always whether the executor has yet taken any action at all. An executor does not have to take up their appointment even if they are named in a will, and there can be a number of reasons why they might be unable or unwilling to act.  They may feel they don’t have the time to devote to the task, they might be in poor health or they could be facing practical hurdles for example because they live abroad. 

In cases like this, the easiest thing for an executor to do is to formally renounce their appointment before they have intermeddled in the estate. This is a relatively straightforward process that requires the execution of a deed. If the will appoints more than one executor then the remaining executors can still go ahead and take out a grant of probate. If there are no other executors appointed by the will then the law sets out who can act instead, so that the estate is not left without anyone who is able to administer it.

But what about cases where an executor is considered to be failing in their duties or is unsuitable for the role? The answer here often depends on the procedural stage that has been reached. If the executor has not yet taken out a grant of probate then it is common to ask the Court to make an order under section 116 of the Senior Courts Act 1981 that a grant shall be issued to someone else instead. If a grant of probate has already been issued then the court can be asked to exercise its power under section 50 of the Administration of Justice Act 1985 to remove an executor from office and replace them with someone suitable. These applications can also be made in cases where a deceased person died intestate (i.e. without a will), and the Court will always consider what is in the best interests of the beneficiaries of the estate.

Court proceedings should generally be a last resort and legal advice should always be taken before an application is made, as there can be serious costs consequences. In my experience, disputes regarding executors can often be resolved through negotiation. This gives the parties some control over the outcome and can be much less expensive than contested Court proceedings. If you find yourself with a problem with an executor, or indeed if you are an executor who is facing a calls to stand down, then a specialist solicitor will be able to advise you regarding the most appropriate option in your specific circumstances.

It’s important to note that a drawn-out estate administration will not always mean that the executor is at any fault. There can be legitimate reasons why the administration of an estate is taking a long time, particularly where there are complex assets to be dealt with or the estate is facing a claim. The individual circumstances of the estate in question must always be considered and sometimes all that is required is more information about what is causing the delay, so that the beneficiaries can better understand what is happening.

If you feel you may need advice about any sort of problem relating to a will or intestacy, then give our specialist Will, Trust and Estate Disputes Team a call on 0114 249 5969 for a free no-obligation discussion.