Removal of an Executor
What is the role of an executor?
An executor is essentially responsible for the administration of the deceased’s estate and is responsible for dealing with the estate’s assets. In the event that mistakes are made and loss suffered by the estate, the executor could be held to be personally liable.
The executor’s duties are contained in section 25 of the Administration of Estates Act 1925 and are defined as “The Executors Oath.”. Duties generally include:
- Making funeral arrangements.
- Collecting real estate, monies and other chattels which comprise the estate.
- Dealing with tax such as inheritance and capital gains tax if applicable.
- Paying off any debts to third parties owed by the estate.
- Administering legacies to the beneficiaries in accordance with the terms of the will.
The executor will generally apply for a grant of probate, giving him/her the official authority to administer the estate.
When can problems arise?
There are a number of situations which can potentially provide the beneficiaries of the estate a cause of action against the executor.
- The executor not acting in accordance with the terms of the will. This could be a failure to pay any third party debts, or not administering assets that the beneficiaries are entitled to.
- The executor is simply not getting on with the job of administering the estate.
- The executor is also a named beneficiary and there is a conflict of their own interests with that of other beneficiaries.
Can an executor resign?
If an executor does not wish to take on the responsibilities of the position, he may step down by lodging an official document known as the reunification form. This must be lodged with the probate court and the beneficiaries must be notified beforehand.
What is the process of removing an executor?
If the beneficiaries have concerns over the administration of the estate, or the ability of the executor to perform his duties, they must first write to the executor asking him to explain and justify his actions.
If the response is not satisfactory, an aggrieved beneficiary must apply to the Court under Section 50 of the Administration of Justice Act 1985. The applicant must show that the welfare of the beneficiaries or that of the estate is being adversely affected by the executor’s actions. This can be quite a high hurdle to overcome as Judges do not take the decision to remove executors from their positions lightly. Persuasive evidence is needed and every case should be considered on its own merits. This is why it is highly recommended that advise is sought as soon as possible. You will need an experienced and skilled team to analyse the particular facts of your case, and assist you through the procedure.