When a testator makes a will, they can choose who they want to administer their estate by naming one or more people to be their executor. Often, people choose family or friends or sometimes a professional such as a solicitor. If a person dies intestate (without a will) an administrator is appointed based on a statutory list of persons with priority, starting with a spouse and then children etc. Executors and administrators are collectively referred to as personal representatives (‘PRs’).
It is not unusual for people to find themselves saddled with the sometimes daunting task of collecting in estate assets, paying the deceased’s liabilities and distributing the assets. All too often the task can become overwhelming, time consuming and complicated. The administration can then grind to a halt, leading to hostility and conflicts. Equally, an appointed PR may have no interest in dealing with the administration. What can the PR or a disgruntled beneficiary then do?
With professional help, PRs can be removed (with or without consent) and replaced and the estate administration concluded. The main routes are as follows either prior to, or after a grant of probate (if there is a will) or letters of administration (if intestacy):
Pre Grant of Probate
If a named executor does not wish to take office, they can refuse to accept the appointment so long as they have not already ‘intermeddled’ with the estate. Often, however, that has already happened before the executor decides that s/he no longer wishes to be involved. If an executor then agrees to retire or be replaced before the Grant is obtained, an application under s.50 Administration of Justice Act 1985 (‘AJA’) may be made. This is a relatively simple procedure and can be done with limited court involvement if all parties are agreed and a new and willing executor can be found.
If an executor will not step aside or is unfit to act, an application can be made under s116 Senior Courts Act 1981 to remove (or “pass over”) him. Such an order will only be made, however, in ‘special circumstances’ where a judge considers that that is ‘necessary’ or ‘expedient’. Special circumstances are not defined but they have been held to include cases where the executor is (i) in prison, (ii) has disappeared and cannot be traced and/or (iii) has set up interests adverse to the estate.
It is clear from the case law that the court has a very wide discretion in deciding whether to pass over an executor. Applications should not, however, be made without good reason, particularly as the testator will have gone to the trouble of identifying specific people to administer his estate. Removal of one or more executors should therefore only be considered as a last resort when all constructive attempts by parties to rectify the situation have broken down. Simple arguments such as “I know someone who could do the job better” will not be sufficient.
Post Grant of Probate or Letters of Administration
Even once a grant or letters of administration have been taken out, an application to remove a PR can still be made to the Court under the court’s inherent jurisdiction in s.50 AJA.
Generally speaking, it is difficult to remove an executor. A court will only consider it if it is in the interests of the proper administration of the estate and would promote the welfare of the beneficiaries, which will depend on the relevant facts of each case. It is clear from case law that not every mistake or neglect of duty will persuade a court to remove PRs. In cases of positive misconduct of an administrator, however, the Court will have no difficulty in intervening to remove individuals who have abused their trust.
Simple hostility or friction between PRs is not sufficient for the Court to order the removal of PRs, unless the applicant can demonstrate that the hostility is preventing the estate from being administered. Even if the PRs’ actions do not amount to misconduct, the level of animosity and distrust between the PRs may mean that effective administration of the estate is unlikely to be achieved, as a result of which a court will act to remove the executors and in some instances replace them with a professional administrator.
PRs also need to be aware that if they act unreasonably in refusing to be replaced they are at risk of being ordered to personally pay the costs of an application to remove them.
A word of caution
Think carefully before you apply to have PR removed. The best course of action is nearly always one in which the parties agree a solution between themselves, as this will save both time and costs.