What Happens If an Executor Does Not Follow The Will?

It is essential that you choose the right person to serve as your estates executor after you pass away. Prestige Tax and Trust Services explains what happens if an executor does not follow the will.

Dissatisfied with the executor

When you write a will, you need to appoint someone to be its executor. As this person will administer your estate, this is an important decision. If you fail to choose an effective executor, your beneficiaries may not be happy with how they handle the estate.

In this instance, what courses of action are open to your beneficiaries? First, if they are unsure of how an executor is carrying out their duties, the beneficiary can write to them to request an account of how they have performed their role. If the beneficiary is dissatisfied with this explanation, they can apply to the court to have the existing executor removed, and/or replaced with another executor.

Court application

It is far from easy to get the court to remove or replace an executor. They will only take this course of action if the existing executor falls into one of the following three categories:

  • They are incapable: If the existing executor is incapable of fulfilling their duties, e.g. they have a disability which prevents them from meeting their responsibilities to the estate, the court may allow beneficiaries to remove them.

 

  • They should be disqualified: If after being appointed, the executor has been convicted of a crime and jailed, they are legally disqualified from administering the estate. Here, a beneficiary can apply to the court to have the executor removed from their position.

 

  • They prove themselves unsuitable: If the executor is unsuitable – e.g. they have engaged in serious misconduct such as stealing from the estate, a beneficiary has the right to have them removed. Serious misconduct can be difficult to prove. A court will not remove an executor if a beneficiary cannot provide sufficient information concerning their misconduct.

Making the application

If a beneficiary wishes to have the executor of an estate removed and replaced, they must make a part 8 claim under the Civil Procedures Rules Part 57, Section 13, to the court. For the application to be successful, the beneficiary must supply the court with several pieces of documentation.

The application must include a certified sealed copy of the grant of probate. It must also contain two signed witness statements; one explaining why the existing executor should be removed and one outlining the proposed replacement executor’s fitness to perform the role. Finally, the application should include a signed ‘consent to act’ letter from the proposed replacement executor.

Prestige Tax and Trust Services

The process of removing an executor who does not follow your will can be complex and stressful for your beneficiaries. Therefore if you want to make life as easy as possible for your loved ones after you pass away, you may want to ensure you write an effective will. The Prestige Tax and Trust Services team has the knowledge, legal expertise and experience required to help you make a will

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