Duties of an executor
An executor has legal responsibility for the administration of an estate when someone dies leaving a Will. It is common for a Will to appoint more than one person to be an executor, up to a maximum of four.
It is an executor’s duty to carry out the wishes of the deceased in accordance with their Will.
The key duties of an executor include (but are not limited to):
- Identifying and collecting in all the deceased’s assets
- Liaising with creditors and settling any outstanding debts
- Preparing accounts detailing the assets and liabilities in the estate
- Calculating and paying any inheritance tax
- Applying for the Grant of Probate
- Locating, contacting and distributing the assets to the beneficiaries
Disagreements between joint executors
Where more than one executor has been appointed, the executors must act jointly to administer the estate. However, numerous conflicts can sometimes arise between executors. For example, some common disputes may include:
- Disagreement over the valuation of particular assets
- Arguments over whether particular assets should be realised or sold
- Disagreement over distribution of the deceased’s personal belongings
- Contention over how a claim against the estate should be handled
- An executor acting unreasonably or ineffectively
- An executor refusing to disclose relevant information to the other executors
- A breakdown in communication between all executors
As a result, there are often delays in the administration of the estate which may negatively impact the beneficiaries of the Will.
Options for resolution
In many cases, executor disputes can be resolved voluntarily and amicably. It may be sensible for each executor to seek their own independent legal advice on the best approach in the circumstances.
There are several options available to executors. For example, it's possible for an executor to renounce their position, as long as no Grant of Probate has been issued or the executor has taken any substantive steps to administer the estate. Alternatively, if no executors wish to step down, there are alternative dispute resolution methods (such as constructive negotiation, arbitration and mediation) which can aid the parties to reach an amicable agreement. This can be the best way to resolve matters as it will save all parties time and cost.
However, alternative dispute resolution is not always possible or successful. In such circumstances, it may be necessary for an executor to make an application to the Court. The Court has the power to:
- Provide directions as to the appropriate action in the administration of the estate
- Remove one or all of the executors from their role
- Issue a grant in favour of one of the executors or invalidate a grant for an executor
- Order an executor to disclose relevant information to another executor
- Appoint an independent party to administer the estate
The Court’s powers are discretionary and they often take a pragmatic approach to these types of disagreements. The key issues for the Court to consider are the beneficiaries and whether the estate is being properly administered.
The Court will only remove an executor if it's absolutely necessary (i.e. there is serious misconduct, a conflict of interest etc.) and not solely because there is animosity between executors. As a general rule, the Court is reluctant to take a position in cases where there are competing arguments of reasonableness and is far more likely to simply appoint an independent professional third party to resolve any issues.
Although legal costs are sometimes paid from the estate, the Court also has discretion to order one or more of the executors to pay the costs of such an application personally. It's therefore important to take specialist legal advice if you are considering making an application or defending a claim made against you.
In summary, there are a number of wide-ranging duties and responsibilities on an executor. It's therefore important that an executor takes their role seriously and acts properly. When disagreements occur between joint executors, there are several options available to help them work through their differences.
If as a last resort an executor wishes to make an application to the Court for removal of another executor, there must be clear and compelling reasons supported by sufficient evidence that the effective administration of the estate is being impeded. Disapproval of an executor’s conduct or personal differences with a co-executor is generally not enough to have them removed from their role.
If you believe any of these issues may be relevant to you, please contact our specialist team for further advice.
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