Removing and Substituting Executors
What to do when the executor needs to be removed and replaced
Photo by Nik MacMillan on Unsplash
Removing and substituting executors
You will find in this article the most common scenarios when there is a need to substitute the executor and the actions to be taken in each case.
What should I do if I do not want to act as the executor?
If you have been appointed as an executor on a person’s will and does not wish to act or cannot act, you have the choice of renouncing, which happens when all of the following are applicable:
- The person who made the will has died
- You have been appointed as an executor and do not wish to act
- You do not want to appoint someone else to apply for probate on your behalf
- You have not started dealing with the deceased’s estate
In order to renounce, you will have to fill in a document called form of renunciation – which can be bought in a specialist legal stationary retailers, such as Oyes – and signed by a disinterested witness. After this form is filled, it needs to be logged at a probate registry along with the will.
The renunciation is valid from the time it was signed, although it may lose its effect at any time before it is filed with the probate registry. If you wish to take back your renunciation after the document has been lodged, only a district judge or registrar can grant you the status of executor back.
After that is done, someone can then apply for letters of administration to deal with the estate.
Instead of renouncing, you also have the option of naming someone else to act as an executor in your place – all you have to do is fill the person’s details in the PA1 form and they will be sent a form to sign.
What to do if the executor refuses to act?
If the named executor refuses to apply for probate one or more of the will’s beneficiaries or next of kin may write to them and put them on notice that an application may be sent to court to name someone else to manage the estate.
A court order may allow for a beneficiary or next of kin to apply for a grant of probate. In case the next of kin do not have a copy of the original will, which is in the executor’s possession, a subpoena should be served upon the executor so they are obliged to deliver the original will in up to eight days.
Eight days after the subpoena has been served, the next of kin can file a citation at court, which requires that the named executor accepts or refuses the grant of probate.
The court will issue the grant of probate to the next of kin if the named executor fails to apply or renounce. This process cannot be done in case the named executor has already started dealing with the estate.
Once the executor starts managing the estate they cannot renounce nor can they refuse to take the grant of probate. When that is the case and the executor refuses to take the grant, the next of kin may apply by summons to court for an order to make the executor take probate within a deadline or ask the court to order that a grant is issued for themselves or another person who was named in the summons. After this court order is issued, the next of kin may apply for grant of probate.
What can I do if the executor is not managing the estate correctly?
Beneficiaries in the will and next of kin may be dissatisfied with the actions of the executor. If that is the case, you must first ask the executor to make an account of the estate’s administration.
If after that you are still not satisfied with how the executor is performing their duties and you are a beneficiary or next of kin, you can apply to court to remove and substitute the executor.
This process can be very difficult as even before the court considers removing an executor from their post the interested parties must prove serious misconduct performed by the executor.
In most cases an executor is removed from their post by court order if the beneficiaries can prove one of the following:
- The executor is disqualified
- The executor is incapable of performing their duties
- The executor is unsuitable for the position
An executor becomes disqualified if they have been convicted of a crime and sent to jail.
When an executor is incapable of performing their duties it is proven by the beneficiaries that the executor has a physical and mental disability, which can be permanent or temporary, preventing them from properly managing the estate.
A conflict of interest or some form of serious misconduct make the executor unsuitable to perform his duties. If the reason is misconduct, the court will only consider to remove an executor if the beneficiaries can provide proof that the misconduct is very serious in nature and the estate is suffering as a direct consequence of it.
Some of the most common examples of misconduct a court is likely to consider is when the executor:
- is stealing from the estate
- fails to keep accurate accounting records
- does not obey a court order
- wastes or does not manage the estate properly
Sometimes misconduct is not always clear and the court may not remove an executor from their post - for instance, if the executor is repeatedly refusing to give information to the beneficiaries or has been unfriendly or rude to the beneficiaries, or has been slow in settling the will.
Removing an Executor
The first thing the beneficiaries should do if they are not satisfied with how the executor is administrating the estate is to write them asking them to explain their actions.
If the executor does not explain their performance or the beneficiaries are not satisfied with the explanation given, the beneficiaries can make an application to court to remove or substitute the executor.
This application must contain the following:
1- A certified sealed copy of the grant of probate or letters of administration.
2- A statement made by a witness saying why the executor should be removed and substituted (giving as a reason their disqualification, incapacity or unsuitability), as well as names of the people in possession of documents that have a relation with the estate, the names of the beneficiaries and details of their interest, the deceased’s assets and liabilities and the name of the proposed person to substitute the current executor.
3- The official solicitor’s signed or sealed consent to act (unless the proposed executor is the solicitor).
4- A statement from a witness saying the proposed executor is fit to act.
To find a specialised solicitor you should search: