Article written by Simona Morina, Contested Probate Solicitor
When a person dies, the executor of the estate takes on the role of administering the estate. Issues can arise when they fail to carry out their role. This article looks at what happens when this proves to be the case.
The options available include:
- Citation to accept or refuse a grant
A citation is useful for advancing the administration of an estate by forcing an executor into acting. If an executor does not apply for a grant of probate, a citation to accept or refuse a grant can be issued.
The person cited must respond by entering an appearance. Should they fail to respond or make an appearance, their right to act as an executor will diminish and the next person with the right to apply (usually the applicant) will be entitled to do so.
If the executor does enter an appearance, they must take the reasonable steps to apply for a grant of probate and administer the estate.
- Citation to take probate
A citation to take probate can be issued from six months after the date of death if the executor has taken some steps to administer an estate but has not applied for a grant. This is known as ‘intermeddling’. This type of citation is available to anyone with an interest in the estate.
The person cited must respond by entering an appearance. Should the person cited not respond, the applicant can ask the Probate Registry for an order stating the person cited takes the grant within a specified time. Should they fail to do so, the grant may be issued to the applicant.
- Citation to propound a Will
A citation to propound a Will can be issued if a beneficiary becomes aware of a later Will that reduces their entitlement under an earlier Will. The citation requires the executor to prove a later Will is valid. If the person cited fails to enter an appearance or propound the Will, the applicant can ask the Court for an order that the grant be issued with the later Will being invalid.
- Removing an executor or administrator
The executor is normally chosen by the Deceased, it is typically the Court’s preference to allow that person to continue in the role, so you must be able to prove that they are seriously inappropriate for the role or that they have failed to comply with their legal obligations.
Therefore, if the executor has taken some action in administering the estate, but you are not happy with the progress or you do not believe that they have been acting in the best interests of the beneficiaries, then you can take steps to address this or remove them altogether.
The initial approach should include trying to obtain the executors consent to step down so someone else can take over the administration. Negotiation led by a legal professional may be helpful where an agreement cannot easily be reached. If it is still not possible to agree, then mediation can be tried.
As a last resort, and if every effort has been made but has proven to be unsuccessful, an application to the Court to remove an executor who is failing in their legal obligation can be made. If the Court decides that the executor of the estate is not performing their duties or would not be able to do so sufficiently, they have powers to remove the executor.
If you are planning to take this route, it is important to obtain specialist legal advice as the process can be complex.
If you are a beneficiary of an estate and feel the executor is not acting as they should, please feel free to email me or contact the team on 020 8858 6971.