Not everyone is suited to the task of acting as an executor and careful thought should be given before accepting the role. Increasingly, executors are attempting to obtain probate without seeking professional advice only to find themselves overwhelmed by the responsibilities they have unwittingly taken on. As a result, the administration of the estate falters and comes to a standstill. At this juncture, beneficiaries often inquire whether an executor can be replaced. The answer to that question depends on the point at which the administration has reached and the reasons behind the impasse. There are three main options available.
Renunciation of probate and intermeddling
In certain circumstances, an executor may voluntarily waive their right to obtain a grant. This is suitable at the initial stage of an administration since renunciation is not possible where an executor has acted in a way to show an intention to accept office and perform the duties of executor known as intermeddling. Identifying an act of intermeddling may not be as obvious as one would think. Clear examples of intermeddling include selling, disposing or transferring the deceased’s assets or paying the deceased debts. However, certain acts do not constitute intermeddling such as:
- paying funeral expenses,
- opening an executor’s bank account,
- creating an inventory of assets and liabilities,
- safekeeping the deceased’s assets,
- insuring the deceased assets or arranging urgent repairs to the deceased’s assets/property.
It is therefore important to consider the nature of the act of intermeddling before ruling out renunciation as an option. Once a person has intermeddled in an estate, he or she loses their right to renounce probate and may be cited to take a grant. Citations can be a useful strategic tool to accelerate the administration of the estate instead of removing the executor. Where citation is inappropriate, two further options are available.
Removal under s.116 Senior Court Act 1981
Where an executor has intermeddled in an estate and the grant has yet to be extracted, the court has the power to remove and replace the executor under s.116 Senior Courts Act 1981. Under the Act, the court has the discretion to appoint any executor if there are any special circumstances which make it appear to the court that it is necessary or expedient. The definition of “special circumstances” includes circumstances where:
- the court considers the existing executor unfit or inappropriate to act, for example, because of mental ill-health or bankruptcy or where the estate may be at risk, or
- where the existing executors are in dispute with one another or have a conflict of interest.
In most situations, the court will pass over the entitlement of the person entitled to the grant in favour of someone independent.
Removal under s.50 Administration of Justice Act 1985
Where the grant of probate has already been obtained and the administration has stalled, the court has the discretion to appoint a new executor or executors in place of existing executors under s.50 Administration of Justice Act 1985. There are no hard and fast rules as to when the court exercises its discretion, but the main guide is the welfare of the beneficiaries. The latest case law gives some indication as to how the court balances the view of the beneficiaries and the interests of the estate and provides helpful advice to executors and beneficiaries alike.
It is clear from the case law that relevant considerations include:
- Material wrongdoing or fault on the part of the executors which endangers the estate
Whilst an important factor, the court does not need to find material wrongdoing or fault on the part of the executors. Minor criticism of the executors which will not affect the administration of the estate is not considered relevant.
- The wishes and interests of the beneficiaries
Beneficiaries have no right to demand a replacement and the court will take a broad view of what is in the interests of the beneficiaries. If however, the beneficiaries are all of full age and capacity and unanimous in their wish for the executor to be replaced, this is a powerful factor.
- The wishes of the testator concerning the identity of the executors
- Whether it is impossible or difficult for the executors to complete the administration of the estate
In the absence of material wrongdoing or fault, the court considers whether it has become impossible or difficult for the executors to complete the administration of the estate. The court must review what has been done to administer the estate and what remains to be done. A breakdown of the relationship between some or all of the beneficiaries and the executors will not justify their replacement unless the breakdown makes the task of the executors difficult or impossible.
- The additional cost of replacing the executors
This is particularly relevant as the court will usually appoint professional executors to avoid making judgments regarding the conduct of the executors. When considering this factor, the size of the estate and the scope and cost of the work which remains to be done are relevant.
Emotions are understandably raw after a death and not all executors feel able to start work immediately, however undue delay may indicate a problem. Expert legal advice can ensure that the interests of beneficiaries are protected, and new executors are appointed who complete the administration in a timely manner.
The author, Alistair Rustemeyer, qualified as a solicitor in 1994 and an accredited mediator in 1999. Alistair is a member of the Association of Contentious Trust and Probate Specialists and is highly specialised and experienced in advising clients across a range of contested probate and Inheritance Act claims. For an initial free discussion please contact Alistair on 01273 044516 or email alistair.rustemeyer@cognitivelaw.co.uk.