Removing an executor from office
Contentious probate lawyer Naomi Ireson looks at the legal options available for removing an executor.
While the vast majority of executors deal with their task honourably and in good faith, a small minority of executors act unreasonably or even abuse their position. In some instances this can have serious consequences for the administration of the estate, causing financial loss to the beneficiaries.
When disputes arise, the first thought for many is to commence legal action. However, court proceedings should generally be a last resort. We recommend that you attempt to resolve matters informally if you can. You can remind the executor of their legal duties and obligations and advise them of the consequences of failing to cooperate. Pointing out that if court proceedings are necessary then you will seek a costs order against them can be particularly effective. The costs of an application to remove an executor can be substantial, so this often brings even the most stubborn executor to their senses.
If common sense does not prevail, then an application can be made to the court to remove the executor. Applications are usually made under s50 of the Administration of Justice Act 1985, though section 116 of the Senior Courts Act 1981 can be used to ‘pass over’ the executor if they haven’t yet been officially appointed.
Orders to remove an executor are not made lightly. A judge will expect to see a compelling case for the executor’s removal. This will usually involve evidence that if the executor is not removed it will have a negative impact on the welfare of the beneficiaries or have an adverse effect on the proper administration of the estate. This would include financial misconduct, dishonesty, excessive delay, and any conduct that might endanger trust property.
Showing that there is friction or hostility between the parties is unlikely in itself to be enough to persuade a court to make a removal order.
For guidance on what you can do where an applications to remove an executor is not the best option, you can read Naomi Ireson’s article on the alternatives to removing an executor here.
If you would like an assessment of your case then contact our free legal helpline. We will consider the options open to you and offer guidance on the most cost-effective solution. Call us on 0333 888 0407 or email us at [email protected]