Problems with executors

Problems and disputes about probate are unfortunately on the rise. Whether this is directly linked or not to the increase in the number of probates where the executors are not professionally appointed and instead are family members is unclear.

For the purposes of this page we make no distinction between executors appointed by a Will or personal representatives who take on the role of administrating an estate where there is no Will.

Problems with executors can generally be classified into 4 types:

• suspected executor or administrator fraud
• executor negligence
• executors being deliberately obstructive and/or delaying the estate administration
• disputes where the Will creates a trust and the executors are also the trustees

Where fraud is suspected

Probate fraud seems to be on the increase and is estimated to cost at least £150 million a year in the UK. The difficulty with suspected fraud is that, as with other types of fraud, by the time it has been discovered it is commonly the case that any assets may have been transferred or money spent. Consequently, a civil action for fraud should be considered like any other type of civil claim – the prospects of recovery should be considered at the outset as there is little point suing someone if they no longer have the means to pay any judgement. We have the experience to be able to assist in pursuing suspected fraud. It needs to be handled very carefully and strategically, but if it appears that there may have been fraud, rapid and determined action is often necessary.

Executor negligence

The difficulty facing many executors is that, when accepting the role, it may not be clear how complex the estate is and how much work is required. Some estate administrations are quite straightforward but others are very complex. This complexity can arise because there is a lack of information or paperwork or beneficiaries may be difficult to find or it may arise because there are many assets or debts or the Will sets up a trust.

If the executors are not professionals, it is key to understand that the legal duty and expectation on them is not as high as if they were professionals. A certain amount of leeway would be likely to be given in the case of any claims for negligence. However, an executor would be expected to demonstrate a basic level of competence such as regards ensuring that any assets are safeguarded (such as maintaining building insurance on a property) during the estate administration and not to act with undue delay.

As probate will inherently take some time, if you are a beneficiary and have reason to be concerned about the competence of the executor(s) there may be ways you can seek to avoid the situation getting worse. It may be worthwhile communicating with other beneficiaries to see if they agree. If so, a tactful approach (because during the administration, the beneficiaries do not have particularly strong rights to demand information or co-operation from executors so a careful approach is definitely called for) to the executor(s) offering help or suggesting that the executor(s) use professional advice to help with the estate administration (and that the beneficiaries agree this should be payable from the estate) may help. It may be that the executor(s) are relieved to be unburdened because once an executor accepts an appointment and starts the process, resigning is not a simple process.

Where executors obstruct or delay

Friction can easily arise with probate. In addition to dealing with the emotions of a bereavement, beneficiaries can become frustrated if they do not understand the process or delays and complications and many executors do not anticipate delays either or are inexperienced. If the executors then receive what are perceived as unreasonable or ungrateful demands from beneficiaries, human nature often results in a response which is curt or unhelpful.

If you are a beneficiary and feel things are dragging on, it may help to understand what can cause delays so you can try and determine whether any delay is outside of these common issues.

The Executors are not bound to distribute the estate of the deceased to the beneficiaries before the expiry of six months after the death of the testator. This does not apply to payment of the privileged debts. In a simple case, probate might only take a few months if the executor makes it a priority to deal with all the paperwork as quickly as possible. A timescale of 6 to 9 months is more usual, but particularly complicated estates or disputed wills can take a year or more.

Under the current rules, all residuary beneficiaries of the estate are entitled to a copy of the estate accounts. However, if you are not a beneficiary or you are inheriting a specific legacy only you are not entitled to a copy of the estate accounts. Executors and Administrators have a duty to act mutually and in good faith, even when they themselves are Beneficiaries or related to a Beneficiary.

Complications can also include:

• difficulty identifying all the assets and liabilities, for example if the deceased did not keep clear records
• problems relating to financial issues such as if the deceased was a beneficiary of a trust or had made significant gifts during the seven years prior to death
• delays or difficulties obtaining valuations, perhaps assets are held overseas or there may be assets such as private company shares which are not straightforward to value
• disputes concerning who is entitled to claim against the estate
• difficulties in finding beneficiaries
• where the deceased has debts and it is not immediately clear whether there may be other debts

Disputes where the Will creates a trust

Many Wills set up trusts and it is not unusual for the executors of the Will to also be appointed as trustees based on the person making the Will being likely to consider both appointments only for those he or she trusts most. The existence of a trust may cause delays in the Will administration process, creating conflict.

How to remove an executor

If a beneficiary is unsure of an executor’s actions, they can initially write to the executor asking them for an account of the administration of the estate. If the beneficiary is still dissatisfied with the executor’s explanation, they can apply to the court to remove and substitute the executor. However, this is not an easy thing to do, as the beneficiaries must prove to the court that the executor has seriously misbehaved. The courts, generally, will only remove an executor if they have done the following:

• criminal conviction.
• incapability – physical or mental disability (albeit permanent or temporary), which is preventing them from performing their duties.
• unsuitability – possibly conflict of interest or serious misconduct.