Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested.
An executor is the person appointed by a will to carry out the instructions set out in the will. If there is no will, a personal representative is appointed by the court to manage the estate under the rules of intestacy. In either case, the person in question applies to the probate registry for a grant. If there is no will or if the person named in the will does not want to act, the person applying for a grant has to give details of why he is the appropriate person to be given the grant. Most commonly a close family member is given the grant.
Occasionally, things go wrong with the administration of the estate after the grant has been made. Sometimes that happens because the executor acts fraudulently to try to keep the estate property for himself. More often, the executor is just incompetent, taking too long to do the job without any reason or making errors over who is to receive property, giving incorrect information or not keeping adequate (or any) records.
In some cases it is self evident that the executor will not be able to do the job at all; if he is in prison, or is too ill to be able to perform the task.
In these cases, an application can be made to the court to have the executor/administrator removed from his position. That application can be made before an application for a grant if the circumstances make that appropriate. If the court is satisfied that the proper administration of the estate is being adversely affected, it can remove an executor or administrator, and can appoint someone else instead. The court will rarely remove an executor because the beneficiaries disagree with the way he is handling the estate or because of friction between them. It is usually only if the problems mean that the estate cannot be administered that the court will intervene.
In cases where there has been serious mismanagement by an executor or administrator, there may be a loss caused to the estate and the beneficiaries. In those cases it may also be possible to bring a claim against the executor for fraud or breach of trust. If successful, the executor would have to pay back any funds taken or any money lost as a result of his actions.
If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email firstname.lastname@example.org.