An executor is the person appointed to administer a person’s estate in accordance with the terms of their Will. An executor’s authority comes from the Will itself, and is to specifically carry out the deceased’s wishes as set out in it.
Executors are subject to a range of legal duties. The primary responsibility is to collect, protect and administer all of the property, money and other assets in the estate in accordance with the law and with the Will. Executors must act with due diligence and in the best interests of the estate and its beneficiaries. They should not let their own interests conflict with this.
A good executor is vital to the proper and timely administration of an estate. Issues can arise where beneficiaries are unhappy with an executor’s conduct. Some common complaints may include:-
- Unjustified or unexplained delays
- Lack of transparency
- Misuse or wasting of assets
- Mistakes and negligence
- Improper distribution
If you have lost confidence in an executor entirely, the options available will usually depend on the stage the estate administration has reached.
Before the grant of probate has been obtained
If concerns arise before a grant is obtained, one option may be to lodge a caveat with the Probate Registry. This will prevent the executor from obtaining a grant of probate for the time being. However, caveats are not appropriate in every case, they should not be used lightly and should only be submitted where there is a proper legal basis, which is narrowly defined on limited grounds, for doing so. An executor can take steps to challenge a caveat if it has been lodged improperly.
A caveat prevents a grant from being obtained for an initial period of six months and can provide breathing space whilst the dispute is investigated or addressed.
Where an executor is failing to act at all, or where there has been unreasonable delay, it may also be possible to issue a citation requiring them to either proceed with the probate application or step aside. If they fail to respond or fail to proceed, it may be possible to pass over the executor and to appoint a more suitable person to move matters forward.
After a grant of probate has been obtained
Removing an executor can be more complex once a grant of probate has been issued, but it may still be possible. In appropriate cases, an application can be made to the court to remove or replace an executor, for example on grounds of misconduct or unsuitability. This will usually require detailed evidence explaining what has gone wrong and why the executor should no longer remain in place.
The court will not remove an executor lightly, so it is important to take advice on the strength of the concerns raised and the evidence available.
After the estate has been distributed
Sometimes an executor’s misconduct only comes to light after the estate has already been distributed. In those circumstances, you may wish to bring a claim against the executor for breach of duty, breach of trust or losses caused to the estate. These claims can be legally and factually complex. They may also be subject to limitation periods, so it is important to seek advice without delay.
Why early advice matters
Disputes involving executors can be emotionally difficult, particularly as they arise at a time of bereavement and often involve family members. Early legal advice can help to clarify your position, preserve the estate, and identify the most effective way forward.
Our Litigation & Dispute Resolution team advises on a wide range of contentious probate disputes, including disputes about executors, the administration of estates, and the validity of Wills.
