How Do I Challenge an Executor of an Estate? 

/ Probate, Wills / By /

Losing someone close to you is one of the hardest things you will ever go through.

However, this pain can be made all the worse if you believe that their estate is being mismanaged by an executor. This adds an added layer of worry, concern, and stress to what is already a very difficult time.

At Terrells LLP, we are highly experienced in estate administration so in this piece, we will explore everything you need to know about challenging a will and its executors, to ensure you have all the right information and knowledge.

What is an Executor?

An executor is someone who has been named in a will as being responsible for managing the deceased’s assets and estate.

These responsibilities can be quite specific based on the estate left behind, however, they will typically look something like this:

  • The collection of the deceased’s assets.
  • Arranging payment on any outstanding debts.
  • Preparing documentation and accounts which detail the assets and liabilities in the deceased’s estate.
  • Distributing the estate according to the deceased’s will.

It is the executor’s duty to perform these tasks. However, there are some cases where an executor may not be distributing the assets, correctly or they are failing in their executorship duties.

This is when a claim can be made against them, or you can apply to the court to have this executor stripped of this responsibility.

At Terrells, we have many years of experience in these matters, and are often asked to take over the administration process when this happens.

We are here to help those that have grievances with the way that an executor is managing an estate, and we have the experience and expertise in our team to manage often complex will disput

How Do I Contest a Will?

The conditions for making a claim against the executor or challenging the will itself often vary depending on the specifics of your disputes. However, the steps that most solicitors go through are often very similar:

Examine & Investigate the Will  

An experienced lawyer must examine the will and any additional documentation, such as any previous wills and any relevant medical evidence in relation to the deceased’s health and wellbeing during the time the will was drafted.

In some cases, witness statements may also be collected to gain a greater understanding of the deceased and the circumstances surrounding the will’s creation, and whether undue influence was a factor.

These investigations will usually be enough for a solicitor to confirm whether or not a claim is valid, and if so, what kind of claim can be made.

Mediation

Most disputes of this kind can usually be resolved by mediation or another method of Alternative Dispute Resolution (ADR).

The aim is to settle the dispute without the need for court, which can be stressful, costly, and time-consuming. Mediation will usually take place during a single day, with a trained mediator to act as a neutral party.

The mediator’s job in this process is to aid the parties in reaching a resolution with the executor and any other beneficiaries.

Court Proceedings

In a situation where the matter cannot be resolved in mediation, court proceedings are the next step to settle the dispute.

This is seldom the case. However, if this does happen, experts like ourselves here at Terrells will stand with you every step of the way to ensure the best possible outcome.

Before any court proceedings begin, we can offer our realistic and expert advice to ensure you are prepared for the most likely result.

What Grounds Do I Need to Make a Claim Against an Executor?

If you have reason to believe that an executor is not performing the duties handed to them by the deceased, then you are within your rights to lodge a claim against them.

As an executor, their duty is to ensure they are distributing the estate in accordance with the will.

If any of the following applies to the estate of your loved one, then the executor may not be performing their duty:

  • Sold off any of the deceased’s property at a reduced rate.
  • Delayed the administration process.
  • Withheld and/or delayed payment to beneficiaries.
  • Paid beneficiaries without settling prior debt accrued by the deceased.
  • Failed to provide an account of the deceased’s estate.
  • Taken ownership of any assets without permission within the will.

It is also the case that if any of the executor’s actions cause a loss of value to the estate, then a court may rule that they are personally required to account for any losses.

Who Can Challenge an Executor?

There are several parties that can apply to challenge or remove an executor. Typically, these will be:

  • A beneficiary.
  • Co-executor.
  • Any third party with a financial interest in the estate, such as a creditor.

Can the Courts Remove an Executor?

The courts can, and will, remove an executor and sometimes replace them with another suitable party in the following situations:

  • They have been proven to have mishandled the responsibility of administering the estate.
  • They have a conflict of interest.
  • They have been convicted of a crime and sent to jail since their appointment.
  • They have a physical or mental disability that prevents them fulfilling their duty.
  • They have committed serious misconduct, such as falsifying accounts or stealing from the estate.

In some cases, an executor may wish to give up the position voluntarily. If an executor has not yet had any dealings with the estate, they can have ‘power reserved’ to them or renounce their position.

This allows the remaining executors to administer the estate without their involvement. An executor with power reserved can become involved later if they wish or as needed.

However, an executor that renounces their position will permanently remove themself from the role.

How Much Does it Cost to Challenge an Executor & Who Pays?

The cost of challenging an executor will vary from case to case, depending on the time, complexity and whether or not the challenge eventually reaches the courts.

That said, the dispute can be settled at any point should all parties reach an agreement over the future of the estate, and from there they may wish to divide the costs between them.

However, should the case reach court, then it is at the discretion of the court to decide how the costs should be divided and paid. However, it is usually the losing party that is required to pay towards associated costs.

There are numerous ways you can cover the cost of a claim. Depending on the complexity of the case itself, these may include:

It may also be possible for some solicitors to take payment from the disputed estate. However, it is best to discuss these options with your legal expert at the beginning of the case for complete transparency.

What Happens if an Executor Dies Whilst Administering the Estate?

If the executor of the estate dies whilst the estate is being administered, and if there are no other executors named in the deceased’s will, the beneficiaries and any legal advisor will need to examine the will of the executor themselves.

Any executor named in the original executor’s Will, will then take on the responsibility of managing both estates, otherwise known as the ‘chain of representation.’

If probate has already been granted to the deceased executor, this must be revoked, and the new executor must make a new application for a grant of probate in their own name to continue administering the estate.

If the deceased executor did not leave a will, the Non-Contentious Probate Rules 1987 determine who is entitled to step in and administer the estate. This will likely be the beneficiary or beneficiaries who are receiving the largest share of the estate. Again, an for a new grant will be required for this.

How Can We Help You Challenge the Executor of an Estate?

To reduce the possibility of dealing with any issues in the administration of the estate, it is imperative that you get in touch as soon as you suspect an issue with the executor or their methods.

In fact, we would recommend seeking expert legal advice in any matters surrounding such wills and estates if you suspect foul play.

In addition to managing all matters related to contesting wills, we have many years of experience in a range of family and estate planning matters, such as:

We are fully regulated by the Solicitors Regulation Authority, have Family Law Advanced Accreditation and are members of Resolution, the UK Family Law Association.

If you require any further information about our range of services, or you would like to talk to an expert member of our legal team, then please do not hesitate to get in touch with us today.