Personal Representatives (i.e. the executors named in the will or the administrators where the deceased died intestate) deal with the administration of the estate. They have a legal obligation to:
- Collect and safeguard the assets of the estate.
- Pay the debts of the deceased.
- Distribute the estate in accordance with the will (or the intestacy rules if there is no will).
Personal Representatives owe a duty of care to the estate and to its beneficiaries. Sadly, from time to time they abuse their position or fail to comply with the legal obligations put upon them. If this causes loss to the estate they could be personally responsible to make good that loss.
There are a few courses of action that can be taken where there are difficulties with a Personal Representative.
Request for an inventory and account
Beneficiaries of the estate are entitled to an inventory and account of the administration of the estate and can apply for a Court Order for one if the Personal Representative fails to provide it. This can be a useful way to compel a defiant Personal Representative into action. Once obtained, the information provided can be assessed to determine whether there has been any wrongdoing by the Personal Representative and whether any further steps are required.
Where a potential executor has not yet taken up the role as such and simply wants to stand down, he or she is able to renounce the appointment. This effectively ends the right to act and the right to a grant of probate.
However, where an executor cannot be persuaded to stand down (for example, he refuses to do so or cannot be traced) and therefore renunciation is not an option, citations can be used as an attempt to encourage a delaying Personal Representative into taking action, or entitle another to take his place. There are two main types of citation in this context - a citation to accept or refuse a grant and a citation to take a grant.
Where a Personal Representative has taken no steps to obtain a grant of probate and is causing delay in the administration of the estate, he or she can be cited by the person next entitled to a grant to accept or refuse probate. If they fail to "appear" (i.e. to reply formally to the citation) or apply for a grant, the citor is entitled to apply for a grant instead.
On the other hand, where a Personal Representative has taken steps to deal with the estate but has not taken a grant within six months of the date of death, he or she can be cited by any person interested in the estate to show why he or she should not be ordered to take a grant. If the executor fails to appear or apply for a grant then, the citor may apply for a Court Order requiring the Personal Representative to take a grant or for a grant to be issued to themselves instead.
The procedure for issuing citations is contained in Non Contentious Procedure Rules r.46-50. Importantly, it must be noted that before a citation is issued, a caveat must be entered in respect of the estate.
Where a Grant of Probate has not yet been obtained, under S.116 Supreme Court Act 1981 the High Court has the power to appoint someone else in place of the nominated executor (or any other entitled person) to deal with the administration of the estate, if it considers that by reason of any "special circumstance" it would be "necessary or expedient" to do so.
Applications under S.116 Supreme Court Act 1981 can be used where:
- The executor cannot be found.
- A dispute has arisen between co-executors.
- Where the executor is of bad character or unlikely to administer the estate properly.
An application can also be made under S.50 Administration of Justice Act 1985 to have a Personal Representative removed and replaced. The Court will not, however, remove a Personal Representative lightly. The grounds for removal must be sufficiently strong and compelling to justify a remedy being sought. Whether or not to remove an executor under S.50 is a matter for the discretion of the court. The overriding considerations are generally the proper administration of the estate and the interests of the beneficiaries. However, it is not essential to establish wrongdoing or fault on the part of the executor - the court may substitute an executor where, for example, the relationships between him and the beneficiaries have broken down to such an extent that it is no longer possible to progress the administration of the estate properly.
As with any contentious dispute a costs/benefit analysis must be carried out and a careful consideration as to whether the potential legal costs are likely to be proportionate will be required.
If you are a Personal Representative and need guidance on your responsibilities or advice on how you can protect yourself from claims brought by beneficiaries, or if you are a beneficiary contemplating action against a Personal Representative, Robert Horsey, head of Ashfords' Wills, Trusts and Estates Disputes Team, is able to assist you.
If you would like advice on challenging a Will, or indeed on any other inheritance or trust dispute, please contact our Disputed Wills, Trusts and Estates Team by telephone on +44 (0)1884 203 018 or FREEPHONE 0800 0931336, or by email firstname.lastname@example.org.