When someone makes a will, they will choose and appoint one or more people (usually relatives) to manage their estate after they die. These are the executors of the will. Their role is to carry out the instructions in the will. So they have to collect in the estate’s assets, such as money and property. Then they have to distribute them to beneficiaries according to the terms of the will. The executors need to obtain a grant of probate to give them legal authority to represent the estate. A beneficiary of an estate may consider challenging executors who are not doing their job properly.
What is the person who dies did not leave a valid will? In that case, someone (again, usually a relative) can apply to be their personal representative (PR) for probate. They will be issued with ‘letters of representation’, which give them the same legal authority as a grant of probate.
What Are The Duties Of Executors/PRs?
Being an executor/PR is time consuming and can be difficult – a large or complicated estate can take months and sometimes years to administer. The major responsibilities of executors/PRs can be complex: prepare a list of the deceased’s assets and liabilities as well as their value, protect those assets (such as by insuring property), file tax returns, and distribute the estate to beneficiaries.
The Reluctant Executor/PR
Given the onerous duties of executors/PRs, it is no surprise that some people get overwhelmed. It is heavy responsibility. They might have agreed to be an executor decades before. The passage of time may mean they are no longer fit, willing or able.
It is possible for an executor to renounce the role. Someone else can then apply to become executor in their place. However, an executor cannot renounce the role if they have started to act as executor, for instance by selling the assets in the estate, paying debts, etc. But carrying out limited steps does not count, such as insuring and protecting the assets, or arranging urgent repairs to property.
What if the executor fails to apply for probate (but does not renounce the role of executor)? A beneficiary or relative should contact the executor to encourage them to take out probate, so that the estate can be administered. Sometimes that is not enough. The beneficiary/relative should then apply to the court to appoint someone else (such as the beneficiary/relative) to administer the estate.
The ‘Suspect’ Executor/PR
Sometimes it becomes clear that the executor/PR is not performing their duties correctly. They may obtain probate but then take no further steps, or be so slow that months drag by with the beneficiaries not receiving their inheritance.
Alternatively, a beneficiary/relative may have suspicions that the executor/PR is not being honest about the estate’s assets and debts. They might even suspect that they are profiting themselves. This is most commonly the case where the executor is also one of the beneficiaries.
The way to start challenging executors in this scenario is as follows. A beneficiary/relative who has concerns about the estate should ask the executor/PR for an ‘estate account’. That is a summary of the assets, liabilities, income and expenses incurred. If the executor/PR refuses to provide one, a beneficiary/relative can apply to the court for an order that they do so.
What if the estate account does not provide a satisfactory explanation, or if there is evidence of wrongdoing, or a serious delay in administering the estate? In that case the beneficiary/relative can apply to the court to remove the executor/PR and appoint a new one. They can also do this if the executor/PR is convicted of a crime and sent to prison. Or if they have become incapable of fulfilling the role due to physical or mental disability.
If the executor/PR is found to have taken money from the estate dishonestly, then they will be ordered to repay it.
Challenging executors is complicated. It is important to take advice about a particular set of circumstances. Call us today to discuss your situation and how we can help.
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