How can I challenge an executor of a will or an administrator?

From a simplistic point of view it is possible to challenge and executor or administrator. Identifying the grounds to challenge an executor, the person or organisation tasked with dealing with a person’s affairs after their death, and following the right procedures, is far more complex. Executors are appointed in a will to deal with a persons estate after their death. Administrators carry out the same role but are appointed by a Court where there is no will. In either case, the Executor or Administrator becomes the ‘personal representative’ of the deceased and carry out the important task of dealing with their estate.

The roles of Executor or Administrator comes with a number of responsibilities and obligations.

To ensure that these are carried out properly and legally there are a number of possible ways to challenge an executor’s actions (or inactions) and the decisions they make. This ensures that they can be held to account for how they deal with the deceased’s estate. Executors may be the friends and family of the deceased or professional lawyers, but all have to operate within the law and are required to carry out their duties properly.

The Reasons for a Challenge need to be Legally Accepted Reasons

Although there are many valid reasons why an Executor or Administrator can be challenged before we discuss those reasons it should be noted that the following reasons are generally not legally accepted challenges.

 

Contentious Probate Advice

challenge an executor

Delays Caused by the Probate Registry

There are timescales that an Administrator or Executor is legally bound to adhere to but if they have applied for the Grant of Probate or Letters of Administration and you are not happy with the time the application is taking it’s unlikely to be their fault. It has been widely reported in the press that there are long delays at the Probate Registry and because of this it’s not unusual for Probate to take 12 months or more. Before you raise a complaint about timescales be sure to check the situation with the Executor or Administrator.

Lack of Communication

Keeping beneficiaries generally updated with progress will likely make the administration process more amicable however, an Executor is under no legal obligation to keep beneficiaries informed of progress. If a beneficiary has good reason to be suspicious of wrong doing because no information is being provided then they can apply to the court for an inventory and account. However, this can be a lengthy and expensive process so a beneficiary should have a very good reason to choose this path.

Not Providing a Copy of a Will

Although it is frustrating if an Executor fails to provide a copy of the Will they can be bypassed. Assuming the Grant of Probate or Letters of Administration have been granted the Will becomes a public document and a copy can be obtained from the Probate Registry.

You are Unhappy with the Contents of the Will or the choice of Executor

The Executor has no control of the contents of the Will and is legally obligated to distribute the estate as per the wishes of the deceased. They have no control over the amount of money or property that is left to the beneficiaries. This can only be challenged is there are concerns about the validity of the Will or there is a potential claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Administrators face the same issue but rather than the estate distribution being dictated by the content of a Will, the rules of Intestacy apply.

If you are unhappy with the Executor that has been named in the Will there is little that can be done. If the deceased chose the Executor their wishes need to be respected and if it’s an Administrator, they will have been appointed by the Court in accordance with the rules of Intestacy. So, unless they can be challenged using one of the reasons outlined below, there is no legal reason have them removed.

The choice of Executor can be challenged if there are doubts over the validity of the Will

As an Executor is appointed by the Will, it is difficult to challenge an executor on their actual appointment. However, a check should be made to ensure that the Will is validly made and properly witnessed. If the Will has been filed with the Probate Registry, it becomes a public document and so a first step is to ensure that the Will is properly witnessed and enforceable as an expression of the deceased’s wishes. It is still possible to apply to a Court to have an Executor removed, if there are grounds to show some kind of impropriety has occurred or reasons to believe the deceased did not want the named Executor to act on their behalf.

Is the Executor or Administrator carrying out the role properly?

More commonly the role of Executor or Administrator will be challenged on the basis that they are failing to carry out their role properly. If an executor is not gathering in or distributing assets correctly, or within the required timescales, it is possible to make a claim for any losses against them personally. Again, it is possible to make an application that the Executor is removed or replaced if they are falling short of the required standards.

There is nothing to prevent anyone with a legitimate interest in the deceased’s estate from making a direct request to Executor or Administrator to explain their actions. If they fail to co-operate then more formal action will be required. For example, an application can be made to a court to ask for what is known as an ‘inventory and account’, forcing the disclosure of information and documents showing the full extent of the estate. However, as previously mentioned, this can be a lengthy and expensive process so there need to be good reason to make this challenge.

Is the Executor or Administrator meeting the required timescales?

An Executor will often have to apply for a Grant of Probate to deal with the estate. It does happen that an Executor will not make the application causing delay and frustration to beneficiaries. If the Executor refuses to apply for the Grant, a court order can be obtained by the next of kin which directs the Executor to take probate within a specified timeframe or that the next of kin be issued with the Grant.

Please note that the Probate Registry is experiencing long delays so the delay may not be the Executors or Administrators fault. If probate is delayed, the first step is to ask for evidence that the application has been submitted before assuming it hasn’t been submitted.

Is the Executor or Administrator fit to act?

Challenging an Executor and removing them from their role is not a simple process, but there are common situations where a Court will intervene. An Executor may become disqualified from acting if they are convicted of a crime and sent to jail. If the Executor or Administrator becomes incapable of performing their duties through physical or mental impairment, then they can be prevented from taking up or continuing in the role. Sometimes beneficiaries will have grounds to suspect misconduct on the part of the personal representative and seek their removal. Where there is some alleged dishonesty or a failure to properly distribute the assets or comply with the law then a challenge can be made.

Challenges can be made by fellow Executors or beneficiaries

Executors may also be beneficiaries and a conflict can arise between the two roles but they are not immune from having decisions scrutinised to ensure they are acting in good faith. There may be more than one Executor appointed and they have to act by agreement. This means that challenges can be made both by co-executors as well as the beneficiaries to an estate. Where there is deadlock directions can be sought from the court. If one of the executors continues to behave unreasonably, an application can be made to remove them.

The very nature of the role can bring Personal Representatives into conflict with beneficiaries and the family of the deceased. The responsibility of arranging funerals, dividing assets, paying inheritance tax and making decisions affecting the lives of others means resentment can result. Executors and Administrators have the authority to make decisions in the best interests of the deceased, but where they fail to act properly, then they should be challenged in order to ensure that the law is complied with and the estate is dealt with correctly.

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