Removal of Executors

17th March 2017

Removing an Executor is not always as a result of any wrongdoing on their part, he/she can retire any time before they have accepted office and they can be removed or substituted at any time during the administration of an estate. However, once they have accepted office then he/she will require an order of the court to terminate their executorship.

The circumstances in which an Executor can be removed or substituted include

a) where he or she wishes to retire;

b) where he or she has been particularly slow to act in the administration of the estate ( executors owe a duty to all        beneficiaries of the estate to administer the estate with due diligence and in accordance with the terms of the Will); or

c) on any grounds on which a trustee may be removed or replaced under s.36 and 41 of the Trustee Act 1925. This includes if they are (i) out of the UK for a length of time; (ii) incapable of acting by reason of illness or mental capacity; or (iii) adjudged bankrupt.

Depending on whether a Grant of Probate has been issued, an executor can be replaced under:

(i) s.116(1) Senior Courts Act 1981 (where no grant of probate has been issued); or

(ii) s.50 of the Administration of Justice Act 1985 (the “AJA”) It is important to note that s.50 of the AJA gives the Court discretionary power to appoint a person to act as a personal representative (“PR”) in place of one or all of the existing PRs. If there are two or more PRs, the court also has the power to terminate the appointment of one or more but not all of them. However, it does not give the Court a stand-alone power to appoint a new PR.

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