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The role of executor (or trustee) is a very important one. In some cases it can be a sole executor that handles the administration of an estate meaning they are responsible for all the lifetime wealth accumulated by the deceased.

The legislation is clear – an executor is responsible for gathering in the assets of the estate, dealing with the liabilities including inheritance tax if applicable, and distributing to beneficiaries according to the terms of the Will.

What if it goes wrong?  What if the executor is rogue, secretive, acts in bad faith, doesn’t pay the liabilities or pockets more for themself from the assets?

If the beneficiaries agree that they do not want the appointed executor, they can request that the executor consent to being removed or, if it is early enough in the estate administration process, seek an agreement that the named executor does not take up the appointment – known as renouncing.

If the executor does not co-operate, then in appropriate cases the court does have various powers to remove an executor including:

  • when ‘necessary or expedient’ the court may appoint an administrator other than the person who would have been entitled to the grant (s.116 Senior Courts Act 1981). In other words, pass over someone.  This power can be used even before a grant has been issued.
  • The court has broad discretionary powers to remove executor(s) (s. 50 Administration of Justice Act 1985). The court will consider each case on its own facts and decide whether to use powers.

The court will adopt the ‘welfare test’. The main consideration is the welfare of the beneficiaries and that the estate is being properly administered.  On the one hand mere friction or hostility between the executor and beneficiaries might not be enough for a removal order, on the other hand you can be sure that wrongdoing and rogue behaviour will be taken seriously and can result in removal.

If you would like to know more, please contact contentious trusts and probate specialist Michael Henry.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.