When creating a will, many people nominate an executor; this is a person or a group of people tasked with the care and administration of an estate. But what can you do if an executor fails to act or if they are not acting in the best interests of the estate?
We take a look at what can happen if the executor of an estate is not performing duties assigned to them in the correct manner.
Duties of an Executor
An executor has many responsibilities to undertake in the name of the deceased. This means that if an executor fails to act, many necessary tasks are not performed. Many people choose to have someone close to them perform the role of executor – a spouse or child of the estate’s owner are common choices.
Essentially, the executor’s role is to comply with the will and handle the estate. Some of the tasks involved include:
- Compiling a list of the deceased’s assets and having them valued (correct at the time of death).
- Settling any outstanding debts – this includes the funeral arrangements, estate administration and any taxes that must be paid.
- Keeping detailed and exhaustive records of any actions taken regarding the estate, including any money taken out.
- Complying with the will and distributing the estate between its beneficiaries.
What Happens if the Executor Does Nothing?
This depends on what stage the executor has reached with the Grant of Probate (the document which gives the executor relevant authority to handle the estate). The course of action taken if they have applied for it and begun to intermeddle is different to that if they haven’t applied for it.
What happens if an executor won’t apply for Grant of Probate?
If an executor fails to act entirely and doesn’t apply for the Grant of Probate, you – as the beneficiary or next of kin – can apply to the court to ask someone else to administer the will. However, you should first write to the executor to warn them that you intend to take this action if they continue not to perform their duties.
This may be enough to encourage the executor to act. However, if the executor continues to do nothing with the estate after you have applied to the courts, the next of kin can serve them with a subpoena to retrieve their copy of the will. If they still do not comply, the next of kin or beneficiary can register a citation with the court.
The executor must then respond to the citation and apply for Grant of Probate or refuse it. If they refuse or do not respond, the courts can appoint someone else as executor.
Executor has applied for Grant of Probate but is not acting
If the executor has already applied for the Grant of Probate, or if they have already begun to intermeddle in the estate, then the beneficiary or next of kin can no longer apply for a citation. However, where the beneficiary or next of kin believes that the executor is failing to act correctly in line with their duties, they can request an account of what they’ve done so far (as one of the executor’s duties is to keep detailed accounts).
For instances where the executor continues to act inappropriately in the name of the estate or the next of kin/beneficiary is unhappy with how the estate is being handled, they can take it up with the courts to challenge the executor.
Challenging an Executor
So, what happens if an executor does nothing and is challenged in court? As the executor is chosen by the deceased, it is typically the court’s preference to allow that person to continue in the role, so you have to be able to prove that they are seriously inappropriate for the role or that they are acting very inappropriately.
If the court decides that the executor of the estate is not performing their duties or would not be able to do so sufficiently, then they have powers to remove the executor under Article 50 of the Administration of Justice Act 1985. Where there is only one executor, they can opt to remove them and replace them with someone else. In the event that there are multiple executors, the court can remove one or more of them, but not all.
Reasons a court may remove an executor
If, since being appointed, the executor’s position has changed and they are no longer qualified to fulfil the role (such as if they have been sentenced to prison time for a crime), they may be removed and replaced.
When an appointed executor is not capable of undertaking their duties or if they are rendered incapable, the courts may decide that it is in the estate’s best interests to remove them as executor.
This is one of the hardest points to prove when challenging an executor. The person challenging them must be able to prove that they have a conflict of interest or that they have committed serious misconduct, such as failing to keep detailed records or stealing from the estate.
Even if the executor has failed to act quickly or if the executor has been unfriendly towards the beneficiaries or next of kin, this is not enough to prove unsuitability for the role unless it is indicative of a conflict of interest (and this must be proven).
If you are the beneficiary or next of kin in an estate and unsure what to do if the executor fails to act, or if you are involved in any other issue of contentious probate and would like to seek legal advice or assistance, we can help. At Newtons, our wills, trusts and probate team is well-experienced in ensuring that disputes are resolved quickly and fairly. Please get in touch with us today for more information.