13 March 2019

What to do with difficult executors

Losing a loved one can be overwhelming, and a difficult executor refusing to give you information about your loved one’s will is the last thing you need. We look here at some key questions and practical tips on what to do if you are worried about an executor’s behaviour, whether you’re a beneficiary or if you are concerned about your co-executor’s approach.

 

Are you entitled to receive information?

 

Many people believe that an executor must provide the deceased’s family members with information about the estate, but this is not the case. You are only entitled to certain information if you are a beneficiary under a will (or next of kin under the intestacy rules, which come into force if the deceased left no will).

Executors have a wide discretion as to what information to disclose, but, generally, they should give a beneficiary:

• a copy of the will or trust documents
• a copy of the deceased’s letter of wishes
• estate/trust accounts.

An executor can also pass on to you any legal advice they receive in relation to the estate. Legal advice obtained by executors/trustees and paid for from the trust fund can be disclosed to the beneficiaries (If the legal advice relates to a dispute between the executor/trustees and beneficiaries, or is paid for personally by the trustees, it is privileged, and a beneficiary is not entitled to see it.)

 

Can an executor refuse to provide you with information?

 

Yes –there are many different reasons for them to do that and they don’t need to explain their reasons. In addition to legal privilege (above) they can refuse to give beneficiaries information if:

• the process of disclosing the information is too costly/time consuming
• the beneficiary has failed to set out the grounds of dispute
• the benefit of that information is only speculative.

 

Can an executor only give you part of the information?

 

Yes, information can be redacted (have sections blacked out) or released with conditions attached.

 

I just want to know if the deceased left a will and if they left me anything – what should I do?

 

If the executor is refusing to release the will and probate has been granted, you can download copies from the government website https://probatesearch.service.gov.uk/#wills.

You will need to know the deceased’s full name and date of death, and there is currently a £10 fee. The Grant of Probate will show who the executor is and how much the net estate is (i.e. the total assets, minus any liabilities or debts). The net estate is the value of the estate available for distribution. A copy of the will should be attached and it will show the deceased’s wishes, although it will not disclose any letter of wishes that might accompany a will.

If you have not been provided for under a will and you feel you should have been, you may have a claim for under the Inheritance Act (Provision for Family and Dependants) Act 1975. Please contact us for further specialist advice.

 

What can you do if you are a beneficiary and an executor refuses to release the information listed and is generally being difficult?

 

You should start by making a formal request to the executor. If they continue to refuse, you have several options.

You can:

• Apply for pre-action disclosure, before any legal proceedings are issued. You would need to show that you and the executor/trustee would be involved in the proceedings, and that the documents requested will assist in the just disposal of any such proceedings;

• Court proceedings – this is suitable where an application for disclosure is likely to be strongly opposed and it is necessary for a court to determine whether a) the beneficiary is actually entitled to the information and, if so, b) whether the trust has a good reason for refusing

• Specific disclosure – if a beneficiary has already started proceedings against a trustee, disclosure is usually limited – the trust is only required to disclose documents in its control, on which it relies, or which adversely affect or support another party’s case. But if you believe that there are classes of documents which the trustee is withholding, you can apply for these to be disclosed and/or made available for inspection.

 

I am an executor and my co-executor is not co-operating. Can I remove the executor?

 

If an executor has accepted office and started to administer the estate, you will need to apply to the court to remove them. Executors owe certain duties towards beneficiaries – see our article www.hcrlaw.com/blog/believe-executor-acting-improperly for more information.

You can also apply to remove an executor as a beneficiary, for example if an executor has been particularly slow to administer the estate, or has not acted with due diligence and in accordance with the will.

For further advice concerning a difficult executor, or if you believe an executor is acting improperly and would like further information, please contact Beth King-Smith, partner and Head of Disputed Wills, Trusts and Estates on bkingsmith@hcrlaw.com or 01905 744 842.

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About the Author
Beth King-Smith, Partner, Head of Disputed Wills, Trusts and Estates
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