When someone passes away, it falls to the executor – the person appointed in a Will – to administer the deceased person’s estate.
It is down to this individual to distribute the deceased’s money and assets – and to ensure their final wishes are respected.
Being an executor is a role which comes with a lot of responsibility, and can be quite daunting, so it is well worth seeking the agreement of that person before appointing them to this position.
What happens if someone dies without leaving a Will?
An executor has a number of tasks and duties they need to fulfil. These include planning the funeral, valuing and collecting the assets and paying the debts of the deceased’s estate, paying any taxes, and arranging for the distribution of the estate to the beneficiaries.
In order to do this, the executor may have to apply for a Grant of Probate. This will give them the authority to manage the estate, and access to the deceased’s bank accounts and property.
In many cases, the executor will act in good faith and within the best interest of the beneficiaries.
But what happens if you feel an executor isn’t performing their role properly?
Concerns about an executor
On occasion, a beneficiary or next of kin may be unhappy about certain actions taken by the executor.
If you think the executor is doing a poor or careless job of managing the estate, this can be grounds for removal.
If you have concerns, your first course of action should be to write to the executor and ask them to provide an account of the administration of the estate. Once you have this, you should take a look at this in detail.
Can you challenge a Will if you feel that it is unfair?
Apply to the court
If you are not happy with the executor’s explanation, you can apply to the court to remove and substitute that person.
Note, however, that the process of removing the executor is not an easy one.
You need to prove that person has seriously mis-managed the estate before the court will even consider forcing an executor to stand down.
Demonstrating that an executor should be removed
Generally speaking, the courts will only remove an executor if the beneficiaries or next of kin can demonstrate certain things. These include showing that:
- The executor has become disqualified since they were appointed. This will apply if he or she has been convicted of a crime and sent to prison.
- The executor is incapable of performing their duties by virtue of a physical or mental disability.
- The executor is unsuitable for the position. This might be the case if there is some kind of conflict of interest, or some form of serious misconduct – such as stealing from the estate or failing to obey a court order.
Note, however, that courts are unlikely to remove the executor for “frivolous” reasons, such as being argumentative with the beneficiaries, or taking a long time to get the estate settled.
Is it wise to cut corners and use a DIY Will?
Steps to take
If you are concerned the executor is not acting in accordance with their responsibilities – or the deceased’s wishes – you should write to them and ask them to explain their actions.
If you are not satisfied with the response, you can make an application to court to remove the executor.
The High Court has a discretionary power to appoint a substitute personal representative.
To make this application, you will need to provide certain documentation. This includes a certified sealed copy of the Grant of Probate, a Witness Statement setting out why the executor should be removed, and a Witness Statement stating that the proposed executor is fit to act in such a capacity.