12 March 2015

What should you do if you believe an executor is acting improperly?

What are an executor’s duties?

The executors are responsible for distributing the estate of the person who has died in accordance with the terms of the deceased’s will. They owe a duty to all of the beneficiaries of the estate to administer the estate with due diligence and in accordance with the will’s terms. This includes:

  • putting the interests of the beneficiaries before those of the executors;
  • acting reasonably and prudently in relation to the estate property;
  • taking all proper steps to protect the assets of the deceased;
  • selling the assets of the estate;
  • distributing the proceeds of the estate to the beneficiaries.

I’m a beneficiary; I think there has been a breach – what should I do?

There are many legal routes you can take and we can often resolve the problem without going to court. But if not, your options include:

  • Inventory / account: The least expensive and, in theory, the quickest way to compel an executor to account for his activities is to apply for an order that he provide an inventory and account in respect of the administration. This can then be examined by the beneficiaries in order to assess the executor’s activities and whether any further action is required.
  • Section 50 Application: You can apply to the court for the executors to be removed or replaced under section 50 of the Administration of Justice Act 1985. You don’t need to prove wrongdoing or fault on the part of the executor – the court will generally replace an executor where, for example, relations between him and the beneficiaries have simply broken down to the extent that the estate cannot be properly administered.
  • Judicial trustee: You can also apply to the court to appoint a judicial trustee to administer the estate, either together with the current executor or as a replacement.
  • Administration proceedings / order for sale: You can apply to the court for an order requiring an executor to do, or not to do, any particular act (such as selling assets). The court can then manage that process, either setting out the next steps for the executor or handing them over to another nominated person.

Who pays?

Normally, the unsuccessful party will be ordered to pay the successful party’s costs in litigation. But occasionally the costs will be borne by the estate, potentially seriously depleting its value. So it is important to think about the cost/benefit balance of taking any of this action. If in doubt, seek legal advice on the best way forward for you.

A success story

In July 2014, we were instructed by the beneficiaries of an estate where, despite the executors receiving the Grant of Probate in March 2010, they had failed to distribute any of the assets. One of the executors was also a beneficiary and it was plain that the reason for the delay was caused by tensions between this executor and their fellow beneficiaries over the provisions of the will.

Upon receiving instructions we immediately forwarded a letter of claim to the executors setting out the clear breaches of their duties and threatening to apply to have them removed as executors if they failed to administer the estate.

To resolve the dispute quickly and with minimal cost, we worked with the remaining beneficiaries to put forward three potential solutions for the division of the estate which were acceptable to all involved. Court action was avoided when all parties came to a settlement.

For advice on these difficult situations, please contact Elizabeth Beatty on 01905 746471 or email ebeatty@hcrlaw.com

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About the Author
Elizabeth Beatty, Partner
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