An executor is someone appointed in a person’s will to carry out the terms of that will. It is a significant responsibility, and if the executor does not fulfil their duties properly it can cause a huge amount of disruption to the process of dealing with the estate of the person who has passed away.
Friends and relatives can also get caught up in these difficulties, especially if they are named as beneficiaries in the will.
If you are a beneficiary of a will and believe that an executor is failing to carry out their duties, this article should give you an idea of whether this is the case, and the legal action you can take.
What are an executor’s duties?
The duties of an executor are to:
- Value the estate
- Obtain the grant of probate
- Collect and protect the estate’s assets
- Pay any debts of the deceased
- Pay any taxes (such as inheritance tax, income tax or capital gains tax) owed by the estate to HMRC
- Distribute the remaining money and assets to beneficiaries according to the terms of the will
Executors are also obliged to exercise reasonable care and diligence when carrying out their duties, and must always act in the best interests of the estate and its beneficiaries.
In addition, executors must fulfil their duties in a reasonable time frame. About a year is generally considered reasonable for a straightforward estate – to the extent that ‘the executor’s year’ is sometimes referred to in legal sources. This stems from various provisions. One of them is that, after a year, beneficiaries may be able to claim interest on gifts specified by the will, if they still have not received them from the estate.
An executor failing in their duties
Delays can happen with the administration of any estate. There could be difficulties tracing beneficiaries, delays in the sale of assets (such as houses), disputes with creditors or with HMRC over tax calculations, or delays at the probate registry issuing the grant of probate. As long as an executor is working towards distributing the estate, and working diligently towards resolving any issues, then delays on their own do not indicate that an executor is failing in their duties.
However, an executor may be failing in their duties if they are:
- Ignoring their responsibilities
- Being unresponsive
- Failing to protect estate assets
- Delaying matters in their own interests
- Possibly misusing estate funds or assets
- Potentially committing serious misconduct – such as fraud or theft from the estate
What steps can you take?
If you are a beneficiary of the estate, there is action you can take to resolve issues with an executor who is failing in their role.
With delays, it may be helpful to speak to the executor if possible, before taking any serious measures. You may be able to discuss your concerns and discover what is causing the delay. If that isn’t possible, or has no effect, you can take the following steps:
- Write to executor, formally requesting an update on the estate’s administration, and a proposed timetable for its distribution
- If you do not receive an adequate response, or the delay continues, you can then escalate the matter to the court
With mismanagement of the estate, an executor may be personally liable to the beneficiaries for any losses they have caused to the estate by their failures. For example, if they have allowed the condition of a house that forms part of the estate to deteriorate, the executor may be liable for the loss in value this has caused to the beneficiary or beneficiaries who ultimately receive the house under the will.
In addition, if the executor has committed serious misconduct (such as fraud or theft), they can be criminally prosecuted, and also may be subject to a civil claim from anyone who has lost out due to their actions.
The court’s powers
If matters have reached a stage where the court must get involved, they can:
- Order the executor to provide an account of their progress
- Order the executor to distribute the estate
- Remove the executor from their position
Ordering the distribution of the estate
The court can issue an order directing the executor to distribute the estate. In some cases, this could be where certain matters are still outstanding. For example, a Benjamin order can be issued to allow the estate to be distributed even if a beneficiary cannot be located – on the presumption that they have died before the testator (the person who made the will).
For a Benjamin order to be issued, the executor must have taken all reasonable steps to try to find the beneficiary beforehand. The executor could be personally liable to the beneficiary if they later reappear and the estate has already been distributed, so it is entirely correct for an executor to require this order before they can ‘pass over’ a missing beneficiary in this way.
Removing an executor
The court can remove an executor from their position and appoint a replacement (such as a professional executor or the Public Trustee).
Applying to the court to remove an executor can be both expensive and time-consuming, and there must be strong reasons for the removal. Courts will not take this step lightly. For example, the court may remove an executor when:
- There is a serious conflict of interest between the executor personally and the interests of the estate and beneficiaries
- The executor is incapable of carrying out their duties, on health grounds
- The executor has breached their duties
- The executor has been found to have committed serious misconduct
An executor can also remove themselves. They can only do so easily if they have not taken any steps with regard to administration of the estate. In other words, they can renounce their appointment as executor in the will before they have taken action. However, if they have acted as the executor in any capacity, they must apply to the court to be removed.
Seeking legal advice
If you are a beneficiary of an estate concerned about an executor, or you are an executor unsure of how to handle your responsibilities, Ison Harrison’s wills and probate solicitors can advise you clearly and fully as to your legal position.
Please do not hesitate to get in contact with us if you need expert advice.
