When writing a Will you can appoint one or more executors. Each can decide at the time whether to act as executor or not. Dealing with the death of a loved one is often extremely difficult and stressful. If co-executors do not get on tensions can arise at this stressful time. This article will go more into what your role of an executor is, what happens if one becomes uncontactable, unresponsive or you just don’t get on?
Topics to be answered in this article
What is the role of an Executor?
The role of an executor is an individual who is responsible for administering the estate of the person who has died. This person will be required to carry out instructions left in the Will, as well as dealing with the general administration of an estate. This will often involve valuing the estate (and instructing independent valuers where necessary), encashing assets, settling liabilities from estate funds and, if required, arranging payment of inheritance tax and making the application for a Grant of Probate.
More complex estates may require the executor to submit tax returns and register any trusts set up under the terms of the deceased’s Will.
Can an executor retire from their role?
An executor can retire from their role as an executor, as long as they have not already started dealing with the estate (referred to as ‘intermeddling’). An executor can renounce their rights to act completely by signing a Deed of Renunciation. This means that the executor forfeits their right to act as an executor now, but they also forfeit their right to apply for a Grant of Probate in the future.
Alternatively, if there is another executor appointed under the terms of the Will who will continue to act and will apply for the Grant of Probate, the executor not wishing to be directly involved could have their ‘power reserved’. This would allow them to apply to the Probate Registry to act as an executor in the future if they wish.
Removal through Mutual Consent
An obstructive or ineffective executor can often make a challenging time even more difficult. Although there may be instances where you have had a dispute with your co-executor and there is hostility and you need an executor removed, some executors simply find the never-ending legal process of administering an estate too daunting and therefore either perform their duties poorly; or, not at all.
In this scenario, it may be that the co-executor agrees to step down and either renounces their position by signing a Deed of Renunciation or reserves their power.
Removing an unresponsive executor
Applications to remove an executor should only be explored as a last resort, after attempts have been made to resolve the dispute in correspondence or by alternative dispute resolution methods. This is because such applications are costly and potentially lengthy (sometimes spanning over 12 – 24 months).
Before you make your application, you will need to set out in writing to the executor why you feel they are in breach of their duties and obligations, thereby affording them the opportunity to comply or reassure you and/ or the beneficiaries of their compliance. Such correspondence should give the executor a thorough understanding of your potential claim, and comply with the relevant pre-action conduct and protocols.
If an application is necessary, then it may be made either to the High Court (Chancery Division) under Section 50 of the Administration of Justice Act 1985 (if a Grant of Probate or Letters of Administration has been taken out), or to the Probate Registry under Section 116 of the Senior Courts Act 1981 (if no Grant has been obtained). The relevant Civil Procedure Rule is r57.13.
The Court will not be prepared to remove an executor without appointing a replacement if the executor is a sole executor or there is a requirement for there to be more than one and their removal would not result in the same. Accordingly, when making the application, you may be required to provide details and statements of willingness and fitness to act, for your proposed replacement – who is usually a professional person or Firm.
Dealing with a joint executor who you don’t get on with
It is a common misconception that, where more than one executor is entitled to administer the estate under a Grant, every act made must be unanimously made. In fact, if one executor carries out a unilateral act (save for in relation to the dealing of land, which must be unanimous), even if the others do not agree, the act will be binding on all of them.
In view of this, and the usual factors giving rise to disputes of this nature (personality clashes, misunderstandings, different interpretations and so on), it is common for disagreements between executors to arise.
In extreme cases, an executor may apply to the Court for the removal of their co-executor, but they would be best advised to exhaust alternative methods of dispute resolution, first.
Often, the easiest way to resolve differences is for the executors to jointly instruct a Private Client lawyer to advise them of the proper course of action, or to deal with or assist generally with the administration of the estate.
Alternatively, the executors could try to negotiate themselves, or instruct independent Contentious Probate lawyers to assist them in negotiations (either in writing, round-table discussions, mediations and so on). Mediations are very commonplace in these situations but, where legal representatives are involved, may cost in the region of £6,000 – £12,000 plus VAT per party.
It is also possible for executors to apply to the Court for ‘Construction’ (i.e. to determine what is meant by a certain clause or provision of the Will usually on the basis of a Barrister’s written opinion), or for directions or guidance in the administration. Executors would be advised to seek legal advice before embarking upon these types of applications.
The costs of and occasioned by any dispute between executors may be ordered (or agreed) to be met by the estate. However, the Court has discretion as to who pays what costs and when, so this should not be considered as a given.
How can Goughs help?
These are all difficult situations and each one is likely to be unique. Goughs are here to help you try and resolve the issue and find a way forward. The issue does not have to go to court to be resolved, but if it does, our Contentious Probate team are here to help with that too.
Contact us using the form below to find out more.
I have been practicing civil litigation since September 2017, specialising in contentious private client work since October 2019. My passion for the latter area of law stemmed from my training period at Goughs, when I realised that I had a natural empathy with clients and their difficult and challenging situations, and could use the law to help them to achieve the positive outcomes that they deserved.
I have been practicing in Private Client Law since 2018, starting my legal career as a Paralegal whilst I completed my LPC part time, then beginning my training contract in 2020 and qualifying as a solicitor in 2022. I chose a career in law to be able to help people through difficult times.