Removing an Executor
Occasionally in the administration of an estate it is necessary to apply to remove an executor or executors and either substitute them for alternatives or to have the estate administered in some other way.
This can be for a number of reasons, the inefficiency or breach of duty of a personal representative for example.
Information about personal representatives’ duties can be found here.
Should it be necessary to do so there are essentially 3 ways in which the Court can remove a personal representative.
Prior to the Grant of Probate.
If the Grant of Probate has yet to be obtained the Court has a discretion to appoint an alternative administrator on application by an interested party to the relevant District Probate Registry.
Where there is no will, the order in which people will be entitled to be appointed as personal representative can be found here.
Other interested parties may include people with claims to provision from the estate or with proprietary claims against the estate.
The Court may only exercise this power before the Grant of Probate is obtained.
After the Grant of Probate.
The Court has a discretion to remove or appoint a replacement personal representative after the issue of the Grant or Probate. There must always remain at least one personal representative.
Application can be made to the Chancery Division of the Court pursuant to Part 57 of the Civil Procedure Rules.
Removal of personal representatives without replacement.
Application also can be made to the Court to remove personal representatives and appoint a judicial trustee where:-
- there are no appropriate substitute personal representatives; and
- where it is not appropriate for the Court to supervise the administration being carried out by the existing personal representatives.
If a judicial trustee is appointed interested parties can then apply to the Court for directions for the future administration of the estate.
How will the Court decide whether to remove a personal representative?
The Court has a discretion whether to remove a personal representative or not. For this reason, it is not always possible to say how the Court will proceed and each set of proceedings will be determined on its facts. That said, there are certain factors that the Court will necessarily take into account.
Generally, the Court will be less willing to remove an executor of an estate than any other form of trustee.
It should be borne in mind that the testator wished the named executors to administer their estates and this is not something the Courts will interrupt without good cause. The Courts will balance this with the need to protect the beneficiaries’ interests in the estate. If there is evidence that the personal representatives are damaging the interests of the beneficiaries through their actions or through a failure to act this could result in successful proceedings to remove them from their role.
Particularly where the personal representatives are family members of the deceased it is not uncommon for the relationship between the personal representatives and beneficiaries to be acrimonious. Unless this begins to adversely affect the administration of the estate it is unlikely to be grounds for removal of a personal representative.
Proceedings to remove personal representatives tend to be brought for one or more of the following 3 reasons:-
Breach of duty.
Details of the types of claims that can be brought against personal representatives and the duties of personal representatives can be found here.
Typically, court proceedings pursued for this reason will include allegations of undue delay or dealing with estate assets inappropriately. The nature and the severity of the alleged breaches of duty will be weighed by the Court on the individual facts of each case.
If there is evidence of continuing breaches of duty that are harming the interests of beneficiaries the Court may, on the application of an interested party, appoint a receiver to manage the estate’s affairs and as appropriate grant injunctive relief to prevent any further harmful conduct.
Conflict of Interest.
If a personal representative has powers to dispose of estate assets and stands to benefit personally from disposing of those assets then, depending on the particular facts, it may be inappropriate for them to continue to act as personal representative or to exercise their powers.
The personal representative is no longer capable of complying with their duties.
If the personal representative is incapacitated in some way, for example by way of mental impairment, or severe physical impairment such as paralysis it may not be appropriate for them to continue in the role.
A personal representative cannot continue to act if made bankrupt and, in those circumstances, if the personal representative is the sole representative the Court is likely to appoint a receiver to administer the estate’s affairs.
Legal Costs incurred in seeking removal of a personal representative.
As with most litigation the successful party tends to recover their costs from a defeated opponent subject to the discretion of the Court.
If a Court determines it is appropriate to remove a personal representative by reason of breach of duty and the personal representative resisted their removal, it is likely that the personal representative would be ordered to personally pay the costs of the proceedings.
For this reason personal representatives ought to consider their position carefully and take appropriate legal advice should removal proceedings be threatened against them.
Where the Court is requested to remove a personal representative and finds no breach of duty but still considers it would be in the interests of the administration of the estate to remove the personal representative the costs of the proceedings may well be ordered to be paid from the estate.