How to remove an executor of a will

How do you remove yourself or someone else as the executor of a will? Kelly-Anne Carr of Wright Hassall explains what to do if an executor doesn’t want to be an executor or if they aren’t performing their duties.

What is an executor of a will?

When a person makes a will they choose one or more people to be an ‘executor’. The executor, or executors, will be responsible for the administration of the ‘estate’ (money, property and possessions) when the ‘testator’ (the person making the will) dies.

Can you remove yourself as the executor of a will?

Controversially, a person making a will does not have to get the permission or approval of an executor before naming them in their will as the executor.

If the person named in the deceased’s will does not want to be an executor, and has not ‘intermeddled’ (see below) in the estate, they may give up the position by formally renouncing. This involves signing a legal document and sending it to the Probate Registry.

What does it mean if an executor has ‘intermeddled’?

The term ‘intermeddling’ is complex and should be assessed on a case by case basis. In brief, intermeddling in an estate is when someone has performed an action to deal with the deceased’s assets or has held themselves in the role of executor.

Intermeddling can be something small, such as paying a debt with the deceased’s money or running their business after death. Acts such as arranging a funeral or protecting assets by moving them to a safe place, however, are not assuming the role of executor and are therefore not generally considered to be intermeddling.

How can you remove a problem executor?

There are many reasons why you might consider making an application to court to remove an executor and appoint someone else, but in general terms it will usually be because they are refusing to act or not performing their executor duties correctly.

However, before you issue an application to court to remove a problematic executor, it is important to try and resolve the issues without court intervention, which should be treated as a last resort.

What should you do if an executor refuses to apply for probate?

If, for any reason, the executor refuses to apply for a grant of probate, it is sensible to write a letter to the executor and warn them that an application to court will be made, potentially leading to appointing someone else to deal with the estate. If the court orders it, a beneficiary or next of kin is entitled to apply for a grant of probate.

Prior to making a formal court application, if the circumstances are right and if the executor has not intermeddled (as outlined above), a formal notice in the form of a citation from the Probate Registry can be served to the named executor.

The purpose of a citation is to:

direct the named executor to take the grant of probate or renounce his/her entitlement
allow the court to direct that the grant of probate should be issued to the next of kin or beneficiary if the named executor does not respond

The Non-Contentious Probate Rules 1987 govern the procedure for preparing and serving a valid citation. It may also be necessary as part of this to make an application to subpoena the will if the executor is holding the original.

What should you do if an executor isn’t performing their duties correctly?

If an executor isn’t performing their duties correctly, in the first instance it is sensible to write a letter to the executor stating your concerns and requesting an account of the administration of the estate.

If the response is not satisfactory, and you think that you have evidence of serious misbehaviour, you may make an application to the court to remove and substitute the executor. Such an application is made under Civil Procedure Rules 57.13.

How can you apply to court to remove an executor of a will?

These types of applications are difficult, and a court will not remove an executor lightly because they will have respect for the testator’s wishes in appointing them to act.

In general, the court will only remove an executor if there is evidence of the following:

The executor has been disqualified since the deceased appointed him, ie has been convicted of a crime and sent to prison.
The executor is incapable of performing his duties, eg has a mental or physical disability, whether permanent or temporary, which is preventing the executor from performing his/her duties.
The executor is unsuitable for the position.

‘Unsuitability’ is more of a complex issue and generally occurs when there is serious misconduct or a conflict of interest, for example:

stealing from the estate
failing to keep accurate accounting records
failing to comply with a court order
wasting or mismanaging the estate

Unfortunately, being unfriendly towards beneficiaries is not enough, and a slow executor or an executor who will not send you certain documents (excluding an inventory or account) is not unsuitable for those reasons alone.

If the court is satisfied with the evidence provided, it has a discretionary power under section 50 of the Administration of Justice Act 1985 to appoint a substitute executor or to terminate the appointment of an executor. Often a professional executor is appointed instead to avoid the potential for a further family dispute.

About the author

Kelly-Anne Carr (nee Schofield) is a Solicitor in the Contentious Probate Department at Wright Hassall LLP.

What are the responsibilities of an executor?

What is a grant of representation and do I need it?

Disputing whether a will has been validly executed

Find out more

Give up your role to manage the estate of someone who's died (GOV.UK)

The Non-Contentious Probate Rules 1987 (Legislation)

Civil Procedure Rules 57.13 (GOV.UK)

Administration of Justice Act 1985 (Legislation)

Image: Getty Images

Publication date: 14 April 2020