What is an Executor?

An Executor is the person who is named in a Will who has been chosen to deal with the administration of an estate after someone has died.

Their role is to determine what the assets are in the estate, apply for Probate if necessary and then distribute the assets in accordance with the Will. An Executor is legally bound to follow the terms of the Will. They must at all times act in the best interests of the estate.

Sometimes an Executor will fail to perform their duties. This could include failing to act at all or failing to distribute the estate in accordance with the Will. If this happens, there are various options available to the beneficiaries under the Will. What action is needed will depend on whether or not Probate has been granted.

What action can be taken?

It is always best to try and resolve things with the Executor directly prior to issuing Court proceedings. It may be a good idea to instruct a solicitor to contact the Executor to remind them of their legal duties and obligations. They can also advise them of the consequences of failing to fulfil these.

If after doing this, the Executor is still not acting as they should, a beneficiary can make an application to the Court. If the Executor has not yet obtained a grant of probate, the beneficiary can make an application under section 116 of the Senior Courts Act 1981 to replace or “pass over” the Executor. The Court are usually reluctant to do this unless special circumstances apply.

If a grant of probate has been obtained, an application can be made for an Executor to be removed or replaced under section 50 of the Administration of Justice Act 1985. The Court will generally grant this application where relations between an Executor and the beneficiaries have broken down to such an extent that it is no longer possible to progress the administration of the estate properly. The Court does not make this decision lightly and so issuing Court proceedings should only be done as a last resort. If you do have to start Court proceedings against an Executor then you will be able to ask the Court to make an Order that they pay your costs. Often the threat of this will be enough to make the Executor complete the estate administration.

If you have concerns about how an Executor is acting, please contact our specialist Wills and Probate Solicitors in Rochdale on 01706 644187.