What are the duties of an executor?

The role of an executor is to administer a deceased person’s estate. At all times an executor must act in the best interests of the estate (and its beneficiaries). Their role includes the following: Registering the death and arranging the funeral Valuing the estate Reporting all relevant information to HMRC and paying inheritance tax Applying for a Grant of Probate Collecting in the deceased’s assets, having them valued and keeping accurate estate accounts Paying any outstanding debts & liabilities of the Deceased Distributing the estate amongst the beneficiaries If an executor misapplies estate funds (or fails to pay the correct amount of tax due), they may be personally liable for any financial shortfalls.

What estate information is a beneficiary entitled to?

Beneficiaries technically only have legal rights over their inheritance once the estate has been distributed. They do however have a right to information before then, to enable them to keep up to date with how the estate administration is progressing. Although the executor(s) have a lot of discretion over what information they share with the beneficiaries, it is good practice to be as transparent as circumstances permit. Executors must also keep accounts of the estate as residuary beneficiaries are entitled to see these upon request. Other types of beneficiaries (i.e. those who have been left a specific asset or sum of money) do not generally have the right to see the full estate accounts, although there are exceptions to this. It is a common misconception that beneficiaries are entitled to see a copy of the Deceased’s will: this is not the case. Once the Grant of Probate is issued it becomes a public document but until then the executor has discretion as to whether to disclose this to the beneficiaries or not – although often an executor will let the residuary beneficiaries see a copy of the will for transparency purposes.

When and how to apply for an inventory and account under section 25 of the Administration of Estates Act 1925?

Section 25 of the Administration of Estates Act 1925 states that: “The personal representative of a deceased person shall be under a duty to— collect and get in the real and personal estate of the deceased and administer it according to law;when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court; …” If an executor refuses to provide copy estate accounts upon request (or if they provide incomplete accounts), the person who made the request can apply to the Probate Registry or to the Court for an order that the executor provide an ‘inventory and account’. Although the Registry and the Court have a discretion as to whether to grant such an application, recent case law provides that the circumstances in which the court will not grant such a request are very limited.

Executor Disputes

Helping to manage executor disputes where there are issues around the Executor’s ability to effectively manage the estate and probate.

Disputes can arise between executors and beneficiaries regarding the administration of the estate, and sometimes this can be due to the executor failing to comply with their legal obligations.

What can you do when an executor is causing a delay to the estate administration?

Probate can be a complicated and time-consuming process. In some circumstances however, the delay may be caused by the executor being too slow or failing to take any action altogether. There is no liability in negligence for delay in getting a Grant of Probate so what can you do if the executor is taking too long?

Citations

Where named executors refuse to take steps to obtain a grant but will also not renounce their rights, it is possible to force their hand by using the citation process. A citation can force the person who has the right to obtain a Grant of Probate to take action in order to make progress in the administration of a deceased person’s estate or lose their right to act.

A citation is a notice in writing issued by a district judge or probate registrar. The citation calls upon the respondent to enter an appearance and to take specified steps failing which the court will grant representation to the applicant or another person specified.

Before applying for a citation, you first need to consider whether, if the person entitled to the Grant were to renounce, would you be entitled instead? If you are a beneficiary or a creditor the answer could be yes. In that case, where the executor fails to take out the Grant but will not renounce their rights, it may be possible to force progress by seeking a citation from the Probate Registry ordering the executor to take action or lose their right to act.

There are three types of citation:

A citation to accept or refuse a grant (this is most useful in cases of delay)
A citation to take probate
A citation to propound a will

Which citation is appropriate depends upon what steps (if any) have already been taken to date.

It may not be appropriate to issue a citation if the applicant does not want the executor to act - there may be good reasons for suspecting that the executor may continue to delay the administration or may cause loss to the estate. In such circumstances, it may be more appropriate to apply to remove the executor altogether.

Removing an executor

Issues often arise in the administration of an estate relating to the suitability and performance (or lack of) of the executor. In such cases, the parties may wish to consider the removal of the executor to allow for the effective administration of the deceased's estate.

An executor can renounce before they have accepted the role, but once they have commenced the estate administration, a court order will usually be required for their removal as they will have intermeddled.

On what grounds can an executor be removed?

If the executor does not agree to stand down, you can apply to the court to remove them. The court’s overriding considerations are the welfare of the beneficiaries and whether the estate is being properly administered. The court, however, will not remove an executor unless it can be shown that there is some fact or circumstance that is genuinely impeding the administration of the estate.

For example, the court may remove an executor if:

The executor has failed to administer the estate correctly;
The executor has carried out serious misconduct (for example stealing funds from the estate);
The executor is unfit or unable to act (for example, they have been convicted of a crime or they are mentally or physically unable to carry out the estate administration); or
The executor has a conflict of interest (for example the executor has a claim against the estate).

Applications to remove an executor can be protracted, and legal costs of a contested matter can run to many tens of thousands of pounds. If you are considering applying to remove an executor, or find yourself facing such an application, we recommend that you obtain legal advice as soon as possible.

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Whether you need to dispute a will or defend your inheritance, our expert team will work with you to achieve the best result. Contact us on freephone 0800 0931336, by email at willdisputes@ashfords.co.uk or via the contact button below for a no obligation chat and to see how we can help.

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