What if an executor refuses to act?If an executor refuses to take any steps to apply for probate and administer the estate but also refuses to renounce their role so that someone else may take over then this leaves the estate in a state of limbo. To resolve this a beneficiary may apply to the court for them to issue a citation to the offending executor. This citation orders the executor to either accept or refuse the grant of probate. If the cited executor fails to appear then all of their rights in relation to the executor appointment cease. The next person entitled to take out the grant can then do so, and administration of the estate can take place. This form of citation is only possible if the executor hasn’t ‘intermeddled’ in the estate. This is where the person has taken on some of the duties of an executor such as receiving the deceased’s assets or settling debts.
What if an executor is not properly administering the estate?If a beneficiary has concerns about the executor’s handling of the administration and they haven’t been able to resolve them informally or through mediation then they may look to have the executor removed. Removing an executor is not an easy thing to do. Each case will turn on its own facts, but what must always be demonstrated to the court is that there are compelling reasons for the removal. Common examples of this are:
- The executor is unfit or unable to act, possibly due to mental incapacity, imprisonment, or bankruptcy.
- The executor is failing to administer the estate properly or failing to progress with the administration.
- The executor has committed some serious misconduct that is causing or could cause loss to the estate. This may be stealing from the estate, wasting assets, or acting dishonestly.