When a person dies, someone will need to take responsibility for dealing with their estate and distributing their assets. If there is a Will in place, this person will be known as an Executor or if there is no Will, this person will be known as the Administrator. The majority of personal representatives carry out their duties reliably but beneficiaries can find themselves in a tough position if they do not.
The principle obligation of a personal representative is to clear the lawful debts and liabilities of the deceased and to distribute the net estate in accordance with the Will or under the rules of intestacy.
· A party can formally renounce (this applies to executors as long as they have not intermeddled with the estate by taking action in dealing with the estate)
· An application to pass over an executor prior to the obtaining of the Grant
· An application can be made to the Court to remove Executor/Administrator and appoint another party following obtaining of the Grant
It must always be remembered that the Courts heavily encourage parties to resolve the matters between themselves. As such, proceeding with an application for removal can be a difficult process and the Courts will not exercise their power lightly. Before considering a claim, it would be strongly advised that a Letter Before Action setting out the position and issues is sent to the Executor/Administrator. This will also enable the prospective claimant to understand the position of the personal representative.
The Courts will only remove a personal representative if there is evidence of the following:
· Executor is disqualified since the deceased appointed him e.g. convicted of a crime and imprisoned
· The executor is incapable of performing their duties e.g. as a result of a mental or physical disability
· They are unsuitable for the position
This will typically relate to serious misconduct or conflict of interest such as excessive delay in applying for probate or distributing assets, mismanagement of funds or failing to safeguard assets. It will need to be established that the misconduct, delays or hostility will make it impossible for the proper administration of the estate.
Establishing this can be difficult and it will not simply be that the personal representatives are slow, failing to provide documents or have an unfriendly relationship with beneficiaries or other personal representatives. The Courts will however consider the welfare of the beneficiaries in their decision.
The Court derives their power under Section 50 of the Administration of Justice Act 1985 to terminate the appointment of an Executor/Administrator, appoint a substitute or appoint an independent party.
If you are experiencing an issue with a personal representative and have concerns on their ability to administer the estate, our Dispute Resolution team would be more than happy to assist you.
We offer an initial fixed fee appointment for £195 plus VAT for up to an hour of a solicitor's time to provide preliminary advice and help guide you to the next steps.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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