When a loved one dies, you may not necessarily be appointed to administer their estate. The job of distributing the deceased’s wealth and worldly belongings may be left to another relative or close family friend, a solicitor or other independent professional, or even a combination of some or all of these people.
That said, as a beneficiary of the estate, this does not leave you entirely powerless, especially where the deceased’s Personal Representatives are not handling matters as you would expect. It may even be the case that you’ve been appointed as one of the people to handle the deceased’s estate, but you’re not happy with the way in which another representative is behaving.
Below we look at the rules relating to Personal Representatives, including the grounds for removing and substituting an Executor or Administrator, and how to go about doing this.
What are the grounds for removing a Personal Representative?
A Personal Representative is someone who has the legal authority to administer a person’s estate after they have died. In England and Wales there are two types of Personal Representative: an Executor and an Administrator. An Executor is a Personal Representative named in the deceased’s Last Will and Testament, appointed during the testator’s lifetime to undertake the job of administering and distributing their estate after they die, whereas an Administrator is someone who acts when there is no valid Will in place and is often the deceased’s next of kin.
In either case, however, those appointed to handle the deceased’s estate will not always act, or be capable of acting, in the best interests of the beneficiaries. As such, if you believe that the estate is not being properly administered, this may necessitate an application to the courts to have the Personal Representative removed and, where necessary, substituted.
Grounds for removal can be varied, but commonly relate to issues of either conduct or capability. These could include, for example, where there is evidence of:
A potential conflict of interests between the interests of the Personal Representative and their obligations to the deceased’s estate
A lack of honesty or fidelity on the part of a Personal Representative
A delay in the Personal Representative acting, or otherwise causing undue delay in administering the deceased’s estate
A Personal Representative endangering estate property in some way, for example, through poor or incompetent financial decision-making.
The existence of poor relations between the Personal Representatives, or between the representatives and the beneficiaries, can also support a case for removal, but only where there is clear evidence that the degree of animosity or distrust is likely to adversely affect the proper administration of the estate and the welfare of the beneficiaries. It is important to note that while friction or hostility between the parties is a relevant consideration, it is not of itself, a reason for the removal of a Personal Representative.
How can you apply to have a Personal Representative removed?
In circumstances where you believe that the deceased’s estate is not being properly or competently administered, and agreement cannot be otherwise reached, then an application can be made to the High Court to remove or substitute one or more of the Personal Representatives pursuant to section 50 of the Administration of Justice Act 1985. An application can be made under section 50 by either an existing Personal Representative of the deceased or a beneficiary of the estate.
Where it can be proven that a Personal Representative has failed to administer and distribute the estate correctly, the court may exercise its discretion to remove them. However, given the wide discretion conferred on the court in these cases, there are a number of additional factors that may be taken into account including, for example, whether the Personal Representative was appointed by the Testator, as well as the likelihood of increased administration costs.
There must be clear and compelling reasons to remove a Personal Representative. This means that the court must be satisfied that these factors would adversely affect the administration of the estate and the welfare of the beneficiaries. The court must also be satisfied that any additional factors do not weigh more heavily in the balance, especially if the cost of any replacement representative is likely to be disproportionate to the problem complained about.
Needless to say, seeking to amicably resolve any issues relating to the conduct or capability of a deceased’s Personal Representative will often represent a more cost effective and quicker solution than seeking recourse through the courts. Before making an application to remove a Personal Representative, it is always best to first seek expert legal advice.
Our private client team can be contacted on 01524 386500 or email enquiries@bsglaw.co.uk
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
