Claims against Executors and Trustees

What is an Executor?

An Executor is a person who is responsible for dealing with the property and possessions of the deceased. The property and possessions left by the deceased is collectively known as the Estate. The Executor has the legal authority and responsibility to administer the Estate and is ultimately liable for any mistakes made.

The Executor can be held personally financially liable for any loss resulting from a breach of their duty - even if the mistake is made in good faith.

This can include:

• Failure to pay the debts and liabilities of the deceased
• Failure to settle the affairs of the deceased relating to Inheritance Tax, Income Tax and Capital Gains Tax
• Failure to settle any claim against the Estate
• Failure to identify and correctly distribute assets to the beneficiaries (including those initially not known about)

Disappointed beneficiaries (people who feel that they should have been left something or else left more in the Will) have up to 6 months to make a claim after issuing the Grant of Probate whilst creditors owed money by the deceased, can potentially make a claim against the Personal Representatives for up to 12 years after the death.

What are Executors responsible for?

Executors are responsible for administering the property and possessions of the deceased in line with their wishes and the law.

The Executors are responsible for everything they do, or fail to do, in relation to the estate. This responsibility lasts for the duration of the Administration of the estate and any ongoing Trust created.

The precise duties fall under the following three areas:

• Legal
• Applying to and attending at Court to apply for Grant of Probate.
• Identifying and dealing with any claims against the estate.
• Settling all debts and liabilities
• Correctly distributing the remainder of the Estate, once all of the liabilities have been paid, in accordance with the Will.
• Administration
• Notification and correspondence with all relevant organisations in order to gather all assets and pay all debts and charges on the Estate. 
• Search for unclaimed or missing assets.
• Prepare and distribute Estate accounts to interested parties.
• Tax
• Completion and submission of Inheritance Tax returns and payment of any Inheritance Tax.
• Completion of any necessary Income and Capital Gains Tax returns and payment of any outstanding tax.

What if the Executor is not performing his or her duties correctly?

If, as the next of kin or as a beneficiary, you feel that the appointed Executor is not performing his or her duties correctly then you show first write to the Executor and ask him/her to render an account of the administration of the Estate.  If you are still not satisfied by the Executors’ explanation, then you may apply to Court to remove and substitute the Executor.

Removing an Executor is not easy. You must be able to prove serious misbehaviour before the Court will even consider forcing an Executor to step down.  In general, the Courts will only remove an Executor you can demonstrate the following:

• The Executor has become disqualified since the Deceased appointed him
• The Executor is incapable of performing his duties
• The Executor is unsuitable for the position

Disqualification

An Executor can only be disqualified if he or she has been convicted of a crime and sent to jail.

Incapable of Performing Duties

An Executor will be seen as being incapable of performing his or her duties if the beneficiaries can prove that the Executor has a physical and mental disability, whether the disability is permanent or temporary, which is preventing the Executor from performing his duties.

Unsuitability

An Executor can become unsuitable to perform his or her duties if there is either a conflict of interest or due to serious misconduct.  The Court is likely to consider the following examples of misconduct:

• Stealing from the Estate
• Failure to keep accounting records
• Failure to obey a Court Order
• Wasting or mismanaging the Estate

Misconduct is not always easy to prove and may not always result in removal. 

How to remove and substitute an Executor

If the beneficiaries have serious concerns regarding the ability of an Executor to perform his duties, the beneficiaries must first write to the Executor and ask him to explain his actions.  If an explanation is not forthcoming or the beneficiaries are not satisfied by the Executors’ explanation, he or she may make an application to Court to remove or substitute the Executor.

The High Court has a discretionary power under Section 50 of the Administration of Justice Act 1985 to appoint a substitute personal representative or to terminate the appointment of a personal representative.  Such an application must be made pursuant to Civil Procedure Rules 57.13.  If proceedings regarding an inheritance dispute have already commenced, then such an application is made by application notice.  However, if there are no proceedings, then a Part 8 claim needs to be made.

Any application to the Court must be supported by the following:

• A certified sealed copy of the Grant of Probate or Letters of Administration
• A Witness Statement setting out the reasons why the removal or substitution of the Executor is sought (referring to his disqualification, incapacity or unsuitability as per above), particulars of the Deceased’s assets and liabilities, those who are in possession of documents relating to the Estate, names of beneficiaries and details of their interest and the proposed individual to substitute the Executor
• Unless the proposed Executor is the Official Solicitor, his signed or sealed consent to act
• A Witness Statement of the proposed Executor’s fitness to act in such capacity, if he is an individual.

For further information on making a claim against an Executor please feel free to contact us and we'll put you in touch will one of our specialist solicitors who will be able to assist you with Contesting A Will.