How to remove an executor of a will

20 April 2022 | Disputes & Claims | Author: Jonathan Peck

The role of an executor is very important and, in the vast majority of estates, executors perform their duties with diligence and understand their responsibilities.

However, in some circumstances it is necessary for the Courts to become involved where an executor is not fulfilling their duty.

Firstly, it’s important to understand what the basic role of an executor is. An executor is a person named in a Will to act on behalf of the deceased’s estate. The primary role is to collect in the Deceased’s assets, such as bank account balances, property and possessions, and distribute those according to the instructions left in the Will.

Secondly, it’s important to note that executors owe a duty of care (called a fiduciary duty) to the beneficiaries under the Will. This means that executors have a responsibility to act in the best interests of all of the beneficiaries (sometimes including themselves).

If you believe that an executor is not fulfilling or has breached their duties, then an application can be made under the Administration of Justice Act 1985 for the executor to be removed.

The Court will generally only remove an executor if;

1. The executor has been disqualified, for example if convicted of a crime.
2. The executor is not capable of performing their duties
3. The executor is not suitable

The third factor is often the most likely to be raised by beneficiaries and examples of unsuitability include, mismanaging the estate, stealing from the estate, not maintaining estate accounts or failing to comply with a court order.

It is not necessary to prove wrongdoing on the part of the executor, but the Court would need to be satisfied that there was a good arguable case that the executor’s conduct justified their removal.

Beneficiaries are sometimes unhappy when executors do not act as quickly as they would like or fail to provide information, however it is unlikely that this alone would be sufficient to remove an executor alone.

It is important that executors and beneficiaries understand their responsibilities and rights so that they can ensure they are not at risk of legal action or can take legal action when necessary. At Fishers our specialist solicitors can help.

We have a team dedicated to looking after disputes when it comes to removing executors, click here to see more.