Removing an executor from office
Taunton based solicitor, Lee Dawkins, looks at how to go about removing an executor from office. For further guidance call our free helpline on 01823 354545 or send us an email.
When considering removing an executor, the first thing to bear in mind is that a formal court order will be required. Applications to the court can involve substantial legal costs being incurred, so before proceeding it is important to make sure the application has good prospects of succeeding.
When will a court remove an executor?
The legal principles for removing an executor were first established in the 19th century and they continue to hold good today. In order to convince a court that an executor should be removed the court will consider a range of factors, such as whether there has been misconduct or a lack of honesty. It is not generally good enough to simply show that co-executors don’t see eye to eye.
Recent developments in the law
The law has developed over the years. It was established in 2010 for instance that it was not necessary to prove fault or wrongdoing for a removal order to be made where other factors prevented an estate from being administered, but the court’s discretion to remove an executor will still not be exercised lightly.
The court will particularly wish to show respect for the deceased’s choice of executor, though this is not a decisive factor.
A total breakdown in relations between co-executors resulting in the administration not progressing can be a reason for removal.
The court will take into consideration the costs of appointing new executors and the extent of any further steps still to be taken to conclude the administration of the estate.
The legal costs of removing an executor
As with any other court action, careful consideration should be given to the legal costs that will be incurred and who is likely to be responsible for paying them.
The general costs principles of civil litigation apply to these applications. So, where an application is successful the court is likely to order that the majority of legal costs are met by the executor who has been removed, with payment being made from their personal funds rather than estate funds.
However costs are always at the discretion of the court and you cannot bank on that order being made. Furthermore, the applicant should be aware that if the application is unsuccessful then the probability is that they will have to pay the costs.
It is always advisable to explore the possibility of a negotiated solution. If an executor is faced with the prospect of a strong application for removal then they may be persuaded to stand down voluntarily, particularly if they are concerned about being ordered to pay the legal costs of a successful court application. Mediation can often be of assistance in finding solutions to executor disputes. We have resolved many executor disputes at mediation, and it is a quicker and cheaper alternative to formal court proceedings.
Free Legal Helpline
We specialise in dealing with inheritance and executor disputes, representing parties from all corners of England and Wales. If you are looking for solicitors experienced in removing executors then please call our Free Legal Helpline on 01823 354545 or send us an email.