An executor is a critical part of the successful administration of the estate of a deceased person. However, there are times when an executor may not be able to, or is not willing to, perform the role. As a testator, the owner of the estate in question, it’s important to take the choice of executor seriously. If there is any reason why your chosen executor isn’t right for the role, then you and your beneficiaries should understand the process required to replace them.
What makes an executor unsuitable?
There are a few reasons why an executor may be unfit for the role:
Unwilling or unable to continue
There may be situations in which the executor feels unequipped to handle the role, or circumstances prevent them from fulfilling their obligations. Sometimes, the affairs to be handled are unusually complex and difficult to navigate for someone with little or no experience, making them feel they are not right for the job.
In a recent application managed on behalf of an executor an application was made due to the distance between one of the co-executors and the long term beneficiary.
Whatever the case, it’s important the position is renounced as soon as possible for reasons we will cover below.
If the executor has behaved in a way that is contrary to the interests of the estate, whether through incompetence or acting illegally, their replacement is clearly required. Mishandling an estate may include:
- Depleting assets in a drawn out administration process;
- Failing to notify beneficiaries in a timely manner;
- Not accounting for everything in the asset pool.
Illegal behaviour during administration of a will typically involves fraud on the part of the executor. Fraud occurs when the executor acts for their own benefit, and may involve actions like:
- Paying themselves unreasonable expenses out of the estate;
- Selling off assets from the estate and keeping the proceeds;
- Deliberately delaying administration for some personal gain.
Executors must maintain records of the estate’s initial value, and track how the estate is handled throughout the administration process, including sales of assets and disbursements to creditors and beneficiaries.
An executor who commits fraud may be held liable for the losses incurred by the estate from their actions, be sued by a beneficiary, or even face criminal charges in particularly egregious cases.
Removing an executor
If it’s believed that an executor is not fit for the role, a beneficiary should first make a formal appeal to the executor to perform their duty appropriately, or provide an explanation for their inaction. If this doesn’t resolve the issue, a beneficiary, or other interested party, may apply to the Supreme Court to direct the executor to carry out their duties, or replace them with an administrator.
Removal before a grant of probate
Before a will’s administration can take place, the executor must apply to the court for a grant of probate, which gives them the legal right to administer the estate. If a beneficiary believes that the executor is unfit for the role, and a grant of probate has not yet been given, they can apply to the court to have them ‘passed over’, barring them from filling the role.
Removal after a grant of probate
If a grant of probate has been given, the court must first be convinced to revoke the grant through a court order, and a new application for a grant of probate made by someone more suitable. In either case, the court isn’t easily persuaded, and clear evidence must be provided to be successful.
The court is ultimately concerned with the welfare of the beneficiaries and the estate. To successfully remove an executor, the court must be satisfied that the evidence shows their holding the position is clearly in conflict with the best interests of the estate and its beneficiaries.
If an executor wishes to step aside
An executor can request to be removed from the position by making an application to the Supreme Court to renounce their role. This can be done by submitting a ‘Renunciation of Probate or Administration with the Will’ form.
As mentioned above, this should be done as soon as possible, because if you have ‘intermeddled’ in the estate, meaning you have already begun to administer the will, it may not be possible to back out. However, there are options in this case. You may:
- Transfer the responsibility to an alternative executor named in the will, while reserving your right to act as executor at a later time. This can only be done if you have not yet applied for a grant of probate;
- Appoint someone through a limited power of attorney to act on your behalf as executor. Again, this is only possible if a grant of probate hasn’t been applied for.
Acting as an executor can be a stressful and overwhelming task. If you have good reason to think a person should be removed from the position, it is absolutely critical to first get sound legal advice to avoid lengthy, and costly, legal drama.
Contact us today for all of your estate planning needs by booking a free discovery call below.