Removing an executor for failing to act

Removing an executor in England and Wales is possible but it depends on the circumstances and the stage things have reached. Here is the legal position and the practical options.

Legal position:

An executor derives their authority from the will itself, not from the court. This means beneficiaries cannot simply vote to remove an executor or unilaterally replace them. However, the court has power to intervene in appropriate cases.

The key statutory provision is section 50 of the Administration of Justice Act 1985, which gives the court power to appoint a substitute personal representative where an existing executor or administrator has been removed. The court also has an inherent jurisdiction to remove an executor where it is necessary for the proper administration of the estate.

The grounds on which removal is typically sought include:

1. The executor is failing to administer the estate within a reasonable time.
2. The executor is acting improperly, for example misappropriating estate assets or failing to keep proper accounts.
3. There is a serious conflict of interest between the executor's personal interests and their duties.
4. The executor has become incapable of acting, for example through mental incapacity.
5. There has been a complete breakdown in relations between the executor and the beneficiaries to the extent that the administration of the estate is being obstructed, though this alone is not always sufficient.

The court will not remove an executor simply because the beneficiaries are unhappy or disagree with decisions. The test is whether the welfare of the beneficiaries and the proper administration of the estate require it. The leading case often cited is Thomas v Griffith (2013), and the court's approach focuses on whether removal is necessary in the interests of the estate as a whole.

Before the grant of probate:

If the executor has not yet obtained a grant of probate and is delaying unreasonably, a beneficiary or other person with an interest can apply to the court under rule 20.11 of the Non-Contentious Probate Rules 1987 for a citation to accept or refuse probate. This forces the executor to either take up the role or step aside. If the executor fails to respond, the court can pass them over and allow someone else to apply for a grant.

A beneficiary can also apply for a grant of administration with will annexed under rule 20 of the Non-Contentious Probate Rules if the named executor is unwilling or unable to act.

After the grant of probate:

Once probate has been granted, the position is more complex. The options include:

1. Writing a formal letter to the executor setting out the concerns, the specific duties that are not being performed, and a reasonable deadline for action. This is always a sensible first step and creates an evidence trail.

2. If the executor is a professional, such as a solicitor, a complaint to their regulatory body (for example the Solicitors Regulation Authority) may prompt action, though it will not directly remove them.

3. Applying to the court under section 50 of the Administration of Justice Act 1985 to remove the executor and appoint a substitute. This is done by issuing a Part 8 claim in the Chancery Division or, for smaller estates, in the County Court. The application must be supported by evidence explaining the failures and why removal is in the interests of the estate.

4. Alternatively, beneficiaries can apply to the court under section 44 of the Administration of Estates Act 1925 for an order compelling the executor to produce accounts or carry out specific duties. This is a less drastic step than removal and may be appropriate where the problem is delay rather than outright misconduct.

Practical considerations:

Court applications to remove an executor can be expensive and time-consuming. The costs of the application may ultimately come from the estate, which reduces the value passing to beneficiaries. For this reason, a well-drafted solicitor's letter or pre-action correspondence often achieves the desired result without the need to go to court.

Where the executor is also a beneficiary, the dynamics are more complicated, and the court will look carefully at the overall picture before removing them.

If there are co-executors and only one is problematic, the functioning executor can often proceed with the administration, which may reduce the urgency of removal.

Key factors the court considers:

The court asks whether removal is in the best interests of the proper administration of the estate and the beneficiaries as a whole. It looks at the seriousness of the default, whether there is actual or potential harm to the estate, whether the executor has been given a chance to remedy the situation, and whether there is someone suitable and willing to take over.

Summary of the practical steps in order:

1. Gather evidence of the executor's failures, including dates, correspondence, and any losses to the estate.
2. Send a clear written letter setting out the concerns and giving a reasonable deadline.
3. If the executor is a professional, consider a regulatory complaint.
4. Consider whether an application for accounts under section 44 would resolve the problem.
5. If those steps fail, consider a court application for removal under section 50 of the Administration of Justice Act 1985.

The strength of any application will depend heavily on the specific facts, the nature and duration of the failure, and whether the beneficiaries can show actual prejudice to the estate.