Requests for advice on when will I get my inheritance, whether the brother whom father appointed to deal with his estate is doing the right thing, or how can I bypass the dreaded uncle and deal with mother’s estate myself are nearly as frequent as deaths. When are however concerns over management of an estate justified and what to do in those situations?
Each valid will made in England will name a person who is entitled to manage the estate, i.e. call in all the assets, pay all debts and distribute the remainder to beneficiaries. Such a person is called an executor. Upon death of the testator, the executor ought to apply for a Grant of Probate that will give them formal authority to start dealing with all assets of the deceased. Until they have a Grant, they will be unable to sell any property belonging to the deceased, close bank accounts etc. From the beneficiary’s perspective, until there is no Grant, there is no chance for any payments out of the estate. How long can all that take?
There is formally no prescribed time in which an executor ought to apply for a Grant. As a rule of thumb though, a period of inactivity of up to 3 - 6 months after death is not at all unusual. What if 6 months have passed and there is still no sign of any activity in matters of a particular estate? It would be wise to write to the named executor and ask for an explanation.
An executor may be unwilling to act. If so, an executor ought to sign a deed of renunciation, relinquishing their right to act in the matters of the particular estate. The deed ought to be lodged with the Probate Registry. If there are no other executors named in the will who would be willing and able to act, there is a list of persons (wife, children and family members) who will be entitled to apply for a Grant in the place of an executor and thus progress matters of the estate.
If an executor does not take active steps in management of an estate and yet does not wish to renounce, beneficiaries may apply to the court for someone else, including themselves to be appointed in the executor’s place. An original will is needed for that purpose, so problems occur when such a will is in possession of an inactive executor. In such a case a subpoena must be served on the executor asking them to deliver the will within 8 days. If no will is delivered within that period of time, the beneficiary will lodge at court and serve the executor with a citation. The citation will call the executor to take a grant or renounce his right to act. If the executor does not do either, the court will be able to direct that a grant of probate is issued to someone else (e.g. the applying beneficiary).
When an executor has taken out a Grant, but from that point on it seems that matters are dragging on and taking forever, again it is worth writing to an executor asking for an account and explanation. If the beneficiary does not receive any reply or is dissatisfied with the reply received, an application to the court for removal and substitution of an executor can follow.
The court will not order removal and replacement of an executor lightly. The court will not entertain applications by beneficiaries who simply distrust that the executor will carry out their duties correctly or those who simply have personal dislike towards each other. In general, the court will only order removal when the executor has been disqualified (i.e. sentenced of crime and sent to prison), incapable to perform their duties (i.e. suffering from a mental or physical disability that is preventing them from acting), or unsuitable to act. Executor becomes unsuitable where there is conflict of interest or where they have committed serious misconduct (e.g. stolen from the estate, mismanaged assets, refused to account etc.). Misconduct needs to be assessed on the facts and need not always result in removal. The court will not frequently remove an executor just because they are acting rudely or unfriendly towards beneficiaries. Similarly, even proven accusations that an executor is repeatedly refusing to give beneficiaries information or is slow in settling the will will not always result in their removal. Success of such cases always depends on particular circumstances of a given case.