15 March 2018

How to remove an executor

An executor is a person who administers a deceased person’s estate and is appointed by the deceased through their will.

 

A person who is appointed as an executor by someone’s will who does not wish to take up the role can renounce as an executor provided that they have not intermeddled with the administration of the estate. However, if a person temporarily cannot administer an estate but will be able to later on, power can be reserved to them to do so.

 

An executor has a legal duty to collect in the estate and administer it in accordance with the law. If a beneficiary (or creditor of the estate, in some circumstances) believes that the estate is not being properly administered, it is possible to apply to court to have the court remove the executor.

 

The court has discretion to remove an executor but will only do so if certain criteria are met.

 

The court can “pass over” an executor’s claim to apply for a grant of probate before the grant of probate has been obtained if an interested party makes an application at the relevant Probate Registry under section 116 of the Senior Courts Act 1981 citing their grounds for the application.

 

When the grant of probate has been obtained, the usual route taken to remove an executor is to make an application under section 50 of the Administration of Justice Act 1985. The most common grounds for removal of an executor are; failure to administer an estate properly, material conflict of interest and/or being unfit or unable to act.

 

The court has wide discretionary powers to remove an executor and will make decisions on a case to case basis. However, over the last few years it has become clear that the court is generally not likely to allow the removal of an executor due to hostility or a breakdown of the relationship between executor and beneficiary unless it can be shown that the hostility may prevent the administration of the estate.

 

Each reason supporting an application for removal of an executor ought to be of some substance or serious enough to warrant removal of the executor to protect the welfare of the beneficiaries or to ensure proper administration of the estate. The court will also consider the deceased’s testamentary freedom to choose who their executor will be through their will and the costs of removing and replacing executors.