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Can You Remove or Replace an Executor?
If you think an Executor is doing a poor job of managing the estate of a loved one, it may be possible to remove or replace them. But it’s far from straightforward.
An Executor is appointed in a Will to manage the deceased person’s estate. They are responsible for distributing the person’s money and assets and carrying out their wishes as set out in the Will. And Executors are legally bound to act independently and in the ‘best interests’ of the estate.
An Administrator is appointed when there is no Will or the named Executors are no longer willing to carry out their duties. Where an Executor has the authority from the date of death, an administrator must apply for letters of administration before dealing with an estate.
Resolving Executor Disputes Without Litigation
Unfortunately, disputes can happen when a beneficiary or someone close to the deceased is unhappy about how an Executor performs their role. Whilst each case is different, we advise clients to speak or write to the Executor, stating clearly the issue and asking for a complete account of the estate’s administration. Resolving a dispute without court proceedings is a sensible and less costly option.
Applying to Court for Executor Removal
However, there are always exceptions to the rule. Some cases are only be resolved by going through the formal court process. Usually, the reasons include the following:
- Evidence of financial misconduct or dishonesty;
- Failure to administer the estate diligently or unduly slowly;
- Proof of the Executor’s physical or mental incapacity;
- The Executor is disqualified after being convicted of a crime or sent to prison.
It’s possible to apply to the Court before or after a Grant of Probate has been issued. But in most cases where a Grant of Probate has been issued, the application is made under section 50 of the Administration of Justice Act 1985. Where the Executor has not yet been appointed under a Grant of Probate, the application can be made to the Probate Registry under section 116 of the Senior Courts Act 1981.
In support of your application, you need to provide the following:
- A certified sealed copy of the Grant of Probate or Letters of Administration;
- Details of the deceased’s assets and liabilities, including names of the beneficiaries;
- A Witness Statement which sets out why the Executor should be removed;
- A Witness Statement explaining why the proposed Executor should be appointed, together with their signed consent to act.
The Importance of Case Law
The Court will not remove an Executor unless there are compelling reasons to do so. It’s clear from cases such as Kershaw v Micklethwaite  EWHC 506 (Ch) that it isn’t sufficient to merely demonstrate there is a problem between the parties: “friction or hostility between an executor and a beneficiary is [not], of itself, a reason for removing the executor.”
The Court is obliged to look at the broader picture to see if the welfare of the beneficiaries is being prejudiced and whether the relationship is affecting the proper administration of the estate.
This was clearly demonstrated in Angus v Emmott  EWHC 154 (Ch). The estate’s main asset was the Home Office’s compensation award for the wrongful conviction of the deceased. The Executors were the deceased’s lover, Mrs Angus, and the deceased’s sister and her husband, Mr and Mrs Emmott.
In summing up, the judge said: “there is such a degree of animosity and distrust between the executors that due administration of the estate is unlikely to be achieved expeditiously in the interest of the beneficiaries unless some change is made.”
The decision was made to remove all the executors and replace them with a professional.
More recently, in the Estate of Folkes  EWHC 2559, the Court ordered the removal of Executors who had helped the deceased during his lifetime to transfer assets at a time when he had dementia. The Court appointed an independent solicitor to investigate whether these transactions were appropriate.
Each case is different. The cost of any litigation should always be weighed against the likely benefit. And Executor disputes are by no means an exception. The evidence of misconduct must be clear, especially where it relates to finance. The overriding responsibility of an Executor or Administrator is to the estate. Where dishonesty or lack of good faith is shown, the Court is likelier to order their removal.
If you need further information or advice about an issue with an Executor or any related matter, please contact us. We’re here to help.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.