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 Administer 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 Administer 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 Administer 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.