What is an executor?
An executor is a person who administers an estate is known as an executor (or a personal representative if there is no will).
What does an executor do?
An executor’s main role is:
- To identify and collect in the estate assets;
- Pay the deceased’s debts from the estate assets; and
- Either distribute the assets in line with the will (or codicil) of someone who has died or to administer an estate in line with the Intestacy Rules (if there is no will).
When do disputes between executors and beneficiaries occur?
Friction can arise between executors and beneficiaries when they have different perspectives about how the estate administration should be dealt with. This does not always mean that something is wrong with the estate administration and there is no set time during which an estate administration should be completed, as each estate will be different.
The amount of work required to deal with an estate can also greatly vary. This is affected by a number of factors e.g. the complexity of the estate, any claims made against the estate and the number of beneficiaries.
However, sometimes problems do occur and executors can fail to comply with their legal obligations. If that occurs, you can apply to the court to have an executor removed and replaced or for the court to determine how the estate administration should be dealt with
What are the warning signs of a problem with an estate administration?
If there is a lack of information about the estate, no apparent reason for a delay or the beneficiaries receive substantially less than they had anticipated, this might indicate that there is an issue with the estate administration. Areas of concern might include those where an executor:
- Fails to progress an estate administration in a timely manner;
- Fails to deal with the administration at all;
- Ignores a will or the Intestacy Rules and deals with the estate in their own way;
- Is negligent or their actions cause a financial loss to the estate;
- Fails to account to the beneficiaries about how they have dealt with the estate;
- Fails to communicate with (or reasonably update) the beneficiaries;
- Ignores the value of estate assets;
- Charges excessive fees (if they are a professional executor);
- Tries to sell or buy estate assets for far less than they are worth;
- Steals or misuses estate assets.
Beneficiaries will want to determine what has happened and, if there is a problem, to resolve this as soon as possible.
Ways to resolve a dispute between executors and beneficiaries
Many disputes between executors and beneficiaries can be resolved through Alternative Dispute Resolution (ADR). This involves using different types of negotiation or mediation.
However, there are cases where more serious action may be required. This may be because an executor has breached their duties, mismanaged the estate administration or there is some risk to the estate assets if the executor continues to deal with the estate.
The court has powers to deal with executors who do not carry out their role effectively or breach their duties. It can also determine any question arising out of the administration of a will or a trust.
In some cases, the court may also ask an executor to account for their dealings with an estate or remove and replace them with another executor (if appropriate).
If you are considering taking action against an executor or personal representative, are concerned about how an estate is being administered or any of the above points, our contentious probate solicitors can advise you about your options.