A question that regularly crops up on our free legal helpline is, ‘Can an executor be removed before probate has been granted?’
If you are looking for solicitors who are experienced in dealing with executor disputes and removing executors from post then call our free legal helpline to discuss how we can help you and the funding options that are available.
The short answer is that it is possible to remove an executor before probate has been granted. A judge can remove (or to use the correct technical term, ‘pass over’ ) an executor prior to the Grant of Probate being issued.
The law specifies that this can be done in ‘special circumstances’ if it is ‘necessary or expedient’ to do so.
The court has a wide discretion and decisions will be taken on the basis of what is required for the proper and efficient administration of the estate.
For an order to be made there is no need to discredit the executor.
Consideration will be given to any breakdown in the relationship between those involved, with decisions commonly being based on what is in the beneficiaries’ best interests.
Where an application to the court is made under section 116 of the Senior Courts Act 1981 details of any conflict of interest or delay by the executor should be given as these factors are likley to be relevant when a decision is made.
One word of warning. S116 applications should not be made lightly. The court will need to be convinced of the merits of the case before passing over an executor who has been specifically named in a will by the testator. A failed attempt at removal is likely to land the applicant with a hefty costs bill, so efforts should therefore be made to resolve disputes out of court. Only if this proves impossible should court proceedings generally be considered.
We specialise in contested probate disputes and are expereienced in executor removal cases, having represented both executors resisting removal and applicants seeking an executor’s removal.