The cost of removing an executor

Removing an executor and the issue of legal costs

In this article we look at the typical cost of removing an executor and who is likley to end up having to pay those costs.

Disputes involving executors are common and frequently fiercely contested.

As with all contentious probate disputes, parties are generally well advised to resolve their differences, if they can, without involving lawyers or the courts. This is because significant legal costs can be incurred once solicitors are instructed and court proceedings are commenced.

However, it is not always possible for parties to reach an agreement and sometimes the only way of breaking the deadlock is to go to court and ask a judge to make a decision.

In executor disputes the most common application to the court is to remove an executor from office.

But before going to court it is essential that the parties consider the issue of legal costs, and in particular these two questions:

• How much are those costs likely to be? and
• Who will have to pay them?

What are the costs of removing an executor likely to be?

We usually give our clients a wide ranging estimate of costs for applying to court to remove an executor. This is because there are so many variables that will impact on costs, and the final total will depend on factors such as:

• The merits of the case;
• The availability of evidence;
• The number of parties and witnesses involved;
• The conduct of the parties;
• The willingness of the opponent to cooperate; and
• The quantity of the documentation.

All of these factors impact on the time that the solicitor will need to spend dealing with the case and the level of costs incurred.

A typical costs estimate for applying to court to remove an executor is between £10,000 and £30,000 plus VAT. However, in cases where the issues in dispute are complicated and the evidence is complex, then that figure could be greater. We therefore assess each case individually and on its own facts.

Who will have to pay those legal costs?

A judge has total discretion when deciding who will pay the costs of removing an executor.

The options include the following:

• The loser pays the costs;
• The estate pays the costs; and
• The parties pay their own costs.

Responsibility for paying legal costs is often decided on the ‘loser pays’ basis. In other words, if you lose the case then there’s a good chance that you will be ordered to pay all or some of the costs. This means that the loser will likely have to pay all of their own costs and most/all of their opponent’s costs. Executors who are facing a removal application should bear in mind that if a court orders their removal then there is a risk that they will be ordered to pay those costs from their personal funds.

In contentious probate disputes the court does have the option of ordering that legal costs be paid by the estate. For instance, this order can be made when a court decides that it is in the best interests of the estate for an executor be removed without making any adverse findings against that executor.

Sometimes judges decide that there shouldn’t be any costs order made. This means that the parties will all be responsible for paying their own costs.

When deciding which of these options is appropriate the court will consider the conduct and actions of the parties and whether they have acted reasonably. Unreasoable conduct is more likely to result in an adverse costs order.

When dealing with an application to remove an executor the court will particulaly look at the executor’s conduct. Did they act in the best interests of the estate? Did they breach any of their legal duties?

Managing the costs of removing an executor

We always plan a budget with our clients before making a court application, and recommend adopting a staged approach, with each stage being budgeted for separately.

Every effort should be made to resolve the dispute by negotiation, and this includes using formal mediation where appropriate.

How we can help you

If you would like further guidance on removing an executor then give us a call on our free legal helpline for a preliminary chat, or send us an email.