Removing executors from a will or estate

The roles of executors, administrators, trustees and beneficiaries

When a person dies, their estate must be dealt with by their personal representatives. Person representatives have a legal duty to deal with the deceased’s estate by collecting the assets and discharging liabilities in the administration of the estate.

A personal representative will either be an executor or an administrator. If the deceased has left a will, that will be the executors who are appointed in the will. Where a person has not left a will, that will be the administrators, (usually their closest next of kin). The term ‘personal representative’ applies to either.

Sometimes, personal representatives are also trustees, most commonly where a will contains a trust (or the estate contains property held in a trust). As such, they will have two different roles in the administration of the estate, but both come with onerous duties, (called ‘fiduciary duties’) to act in the best interests of the beneficiaries.

Friends and family members can also be beneficiaries. A solicitor will also have a professional duty and be paid out of the estate. Other executors and trustees are not usually paid beyond out-of-pocket expenses.

It’s a complicated system and mistakes can happen. These might range from issues over valuations of estate property and delays, to breaches of trust or allegations of personal gain.

What are the duties of personal representatives and trustees?

The main fiduciary duties of personal representatives and trustees are to:

• Act in good faith
• Not make a profit from their own to the detriment of the beneficiaries, save for any right of a professional to be paid for their role
• Not prefer their own interests over those of the beneficiaries

These roles require neutrality, so they cannot prefer one beneficiary over another. 

The main duties of the personal representative role (executors and/or administrators) include:

• Arranging the funeral
• Distributing the net estate either in accordance with the terms of the will, or the rules of intestacy
• Identifying the assets and liabilities of the estate
• Paying any taxes due
• Paying the liabilities from cash assets
• Preparing accurate accounts

If there is more than one personal representative, they must act unanimously in their decisions about administering the estate.

Who can be an executor, administrator or trustee?

Personal representatives and trustees can be professionally qualified (often solicitors), but are commonly family members or friends of the deceased, entrusted with the role.

What if an executor or administrator does not want the role?

Unless the personal representative is a professional with a right to be paid for their services, this is a role that carries a lot of responsibility with no right to be paid.

In an intestate estate, no one can be forced to apply for a grant. Where there is a will, the named executor is entitled to ‘renounce’ their role provided they have not already started to administer the estate, but if they do start the process of administration, then they cannot renounce.

A solicitor is not required to renounce; it just requires a court form to be sent to whoever is applying for the grant. This is called Court Form PA15 – Renunciation.

When might you wish to remove or substitute an executor?

There may be any number of reasons why either another personal representative, or a beneficiary, may take the view that a personal representative is not suitable to either take up the role, or having obtained a grant to administer the estate, has proved to be either incapable, or unsuitable, for the role.

Generally, the applicant (usually a beneficiary or co-executor) files a Civil Procedure Rules Part 8 claim.

Incapability

Incapability may mean physical incapability such as imprisonment upon a criminal conviction, or it may mean that, through physical or mental illness, they do not have the required mental capacity to fulfil the duties of the role.

How can the incapacity of an executor be proved in court?

The evidence in favour of removal will differ depending on the reasons that removal is sought. In either case, the court will require the claimant to file a detailed witness statement and all of their supporting evidence at the outset. This must demonstrate that it is appropriate for the court to make the order.

Evidence may include:

• Evidence of consistent non-responsiveness, lack of time management, or inability to understand the process
• Medical evidence (e.g. a doctor’s letter or hospital records)
• Witness statements (such as from co-executors, or family members, or professionals)

Unsuitability

Unsuitability takes many potential forms. Examples that commonly occur are:

• Acting in a way that gives preferential treatment to themselves or others to the detriment of other beneficiaries
• Not taking any steps to administer the estate for a prolonged period
• Stealing money or assets of the estate for themselves
• Substantial delay, or delay that causes a devaluation in the estate

If a personal representative who is unsuited to the role cannot or will not renounce, then an application to court will be needed to have them removed.

What is the removal process of an executor?

We firstly review the situation of the estate. It may be possible to resolve the situation without things progressing to court. With a formal letter or negotiation, the executor may resign by submitting a PA15 form.

Applying to court

Before a grant has issued, a application may be made to court to ‘pass over’ a personal representative under S116 of the Senior Courts Act 1981.

After a grant has issued, a claim may be brought to remove or substitute, a personal representative under Section 50 of the Administration of Justice Act 1985.

Where the a personal representative, after the administration of the estate, continues to hold estate property on certain statutory trusts, a claim may be brought under Section 41 of the Trustee Act, for the appointment of a new trustee to replace the current trustee.

How does the court decide?

The court applies the terms of S116 or S50 to decide what order to make.

Whilst the phrasing of S116 and S50 the criteria are different, the main justification for removal arising from the case law is that unless the personal representative is removed, the estate will not be administered. 

The courts are keen to facilitate the efficient administration of estates, so provided an applicant’s evidence is sufficiently persuasive, then it is more likely than not that the court will make the order to remove or substitute the personal representative.

Usually, it will make the order in favour of the administration being completed by an independent professional administrator, appointed to the court to fulfil that role.

However, the court will not make an order if the reason it is requested is that there is tension or strain in the relationship between the personal representatives and/or the beneficiaries. That is simply not enough to take up the court’s resources, so the grounds for removal must be strongly persuasive and well presented.  

How to get in touch

We’ll discuss your case and help you decide on your next steps. Start the conversation by getting in touch with an expert via our contact form. 

Our approach is supportive and sensitive, and our technical expertise will allow you to achieve the best possible result based upon your own personal circumstances.