Being named an executor by a friend or family member will have some important responsibilities. It means you have earned the trust and respect of the person who has made the will.
It is, therefore, important as an executor to act in the best interests of the testator and the beneficiaries.
Problems will arise if an executor does not or is unable to act in the best interests of the testator and the beneficiaries. An executor needs to conduct their duties competently; otherwise, the beneficiaries may decide to sue them.
Suppose you are a beneficiary of an estate, and you fear that the executor is not acting in the best interests of you and your co-beneficiaries. In that case, consider this article on what steps you can take to remove them as an executor.
What is an executor?
An executor is someone appointed under a deceased person’s will (known as a testator) to deal with and administer the testator’s estate.
The executor will have various duties they must fulfil because of their appointment. They must administer the estate within a reasonable time (usually six months). Some of their duties also include:
- Collecting the testator’s assets.
- Selling some or all the assets for cash (if necessary).
- Arranging the funeral.
- Making a payment from the estate for the funeral and other testamentary costs.
- Settling any debts that the estate may have.
- Paying the appropriate taxes.
- Applying for a grant of probate.
- Distributing the assets or cash to the beneficiaries in accordance with the will.
Whilst exercising their duties, an executor has a duty of care to the beneficiaries to act in their best interests. This means, for example, obtaining the best sale price for a painting sold rather than selling it cheaper to their friend or discharging their duties promptly.
So, if an executor is acting in the best interests of the beneficiaries and testator, why would someone want to remove an executor from a will?
Why might someone want to remove an executor from a will?
Acting as an executor for a friend or family member’s estate will be very stressful and emotional. Because of this, the executor may not be up to the task and wish to give it up.
It is also challenging to find and collect assets, deal with a lot of paperwork, and ensure they pay the appropriate debts and taxes.
Another reason may be that the executor is inadequate at dealing with the estate. It is something that only some people become experienced in, so there is a lot to deal with which can be outside of their ability.
Or the executor may not be acting in the best interests of the beneficiaries and testator. This can happen in many forms. For example, the beneficiaries may believe the executor is selling the testator’s assets below market value to their family members.
The executor may not have the mental capacity to carry out their duties. A lack of mental capacity could result from the executor suffering a mental impairment such as dementia or a brain injury.
How can an executor be removed?
A judge may remove an executor if they do not perform their duties, or the beneficiaries present a compelling case to remove the executor. The judge will consider whether keeping the executor would harm the estate’s interests.
The judge has discretion under section 55 of the Probate and Administration Act to remove an executor of a will if:
- No application has been made for a grant of probate or letters of administration within six months from the date of death.
- An application for a grant of probate has been made within six months from the date of death, but the application was not continued, withdrawn, or refused.
- The grant of letters of administration has not been extracted.
An executor may expressly renounce their appointment. The executor or their lawyer may do this at a hearing or in writing which the lawyer must attest to the renouncement.
The executor’s appointment may be constructively renounced. Constructive renouncement is where the executor is deemed to have renounced their position without expressly doing so.
A citation is a notice that beneficiaries can issue. A citation requires the executor to either accept or reject their right to the grant of probate or letters of administration at court.
If the executor does not attend court, they will have renounced their right to the grant of probate or letters of administration.
They will also have renounced their right if the executor appears in court but does not apply for a grant of probate or letters of administration.
An executor’s position will be renounced if a term of a will or its validity is successfully challenged. Should the will be successfully challenged, it is invalid and will not be followed. Generally, a person interested in the will can contest it.
If a will is invalid, the administration of the estate will be done under the intestacy rules.
Beneficiaries should be careful when contesting a will’s validity. They may no longer be entitled to inherit the testator’s estate, or their share may be reduced.
See our article here on challenging a will for further information.
If a substitute executor is appointed in the will, they will take over the duties of the first executor. But if there is no substitute or alternative executor, the court will reappoint a new executor to distribute the estate.
Filing a caveat
Suppose the beneficiaries are concerned about whether someone has the right to apply for a probate grant due to the executor’s suitability or because a will may not be valid. In that case, the beneficiaries can enter a caveat.
A caveat may also be applied for by anyone interested in the estate if they will be affected by the grant of probate.
A caveat prevents a grant of probate or letters of administration from being issued. No grant of probate or letters of administration will be issued without notifying the interested persons who filed the caveat. The caveators will have an opportunity to contest the probate application for a grant.
A caveat will provide time to the caveators so they may investigate their position to determine whether they hold sufficient grounds for opposing the grant of probate.
It will also allow anyone else who is interested in the estate an opportunity to ask questions in respect of the grant in court.
Caveats are also a preliminary step to a probate claim or to issue a citation to, e.g., have an executor’s position constructively renounced.
The difference between a Grant of Probate and a Letter of Administration
A grant of probate will be issued to executors when there is a valid will and there are named executors administering the estate.
A grant of letters of administration will be issued when a person dies without a will or there is a will, but no executors are willing to administer the testator’s estate.
Each grant holds the same weight in law but is obtained under different processes.
Disputes between executors and beneficiaries
Dealing with a loved one’s estate can cause tension between the family and beneficiaries. Those who are co-executors may run into disputes with each other or the beneficiaries in one way or another.
It is essential to communicate regularly with all parties involved and be mindful to avoid delays in dealing with the estate. Remember, an executor must administer the estate in a reasonable time (six months).
It is common for executors to mismanage the estate either negligently or innocently. Mismanagement can cause frustrations for those involved, particularly if it causes loss to the estate. Should this happen, the beneficiaries may sue the executor.
Seeking legal advice early can help prevent disputes, delays, and unnecessary costs.
Allow us to help
Let us help you with making an application to the court to remove executors from a will or contest a will.
We can also help you avoid disputes among co-executors and beneficiaries by instructing our experienced probate lawyers to assist in administrating the estate.
Our experts have years of experience helping executors manage the probate process and carrying out the executor’s various responsibilities on their behalf. Our assistance will help speed up the probate process and alleviate all party’s concerns.
We can help settle disputes and take the pressure off you as an executor. Not only will you be sure we will carry your duties out to the highest standard, but you won’t be sued due to delays or administering the estate incorrectly.
Contact us for further information on removing an executor from a will.
