When someone dies and leaves a Will, the executor has an important responsibility: to administer the estate in accordance with the Will and Irish law.
But what happens if an executor is causing serious delays, refusing to communicate with beneficiaries, mishandling estate assets or is otherwise unable or unwilling to administer the estate properly?
In certain circumstances, an executor can be removed or a Grant of Probate can be revoked or recalled by the court. However, disagreement with an executor or dissatisfaction with their decisions does not automatically justify their removal.
The appropriate course will depend on the circumstances of the estate and whether a Grant of Probate has already issued.
What Does an Executor Do?
An executor is the person appointed under a Will to administer the deceased person’s estate.
Once a Grant has issued, the personal representative has the legal authority to administer the estate. This can include identifying assets, dealing with liabilities and taxes, selling or transferring property where appropriate, and ultimately distributing the estate to those entitled to inherit.
Under Section 10 of the Succession Act 1965, the deceased’s estate becomes vested in their personal representatives, who hold it for the persons legally entitled to it.
This places considerable responsibility on an executor.
Can an Executor Be Removed?
Yes, but removing an executor is a serious step and normally requires court involvement once the executor has taken up the role and a Grant has issued.
Section 26(2) of the Succession Act 1965 gives the High Court power to revoke, cancel or recall a Grant of Probate.
The Courts Service also expressly provides for applications concerning “liberty to renounce or remove an executor” and identifies these as court-order applications.
The precise procedure and remedy will depend on what has happened in the particular estate.
Why Might an Executor Be Removed?
Concerns about an executor can arise for many different reasons. Examples may include:
- serious or unexplained delays in administering the estate;
- failure to communicate with beneficiaries;
- failure to account properly for estate assets;
- misuse or misappropriation of estate property;
- a serious conflict of interest affecting the administration;
- persistent failure to progress the administration;
- disputes between co-executors that prevent the estate being administered; or
- circumstances in which the executor is unable or unwilling to perform the role.
Importantly, not every delay, disagreement or mistake will justify removing an executor.
Probate administration can legitimately take time, particularly where an estate involves property sales, tax issues, litigation, debts or difficult-to-value assets.
The issue is therefore not simply whether beneficiaries are unhappy with the executor. The particular conduct and its effect on the proper administration of the estate need to be considered.
What If an Executor Is Not Communicating With Beneficiaries?
Poor communication is one of the most common sources of disputes between executors and beneficiaries.
An executor may need time to establish the assets and liabilities of an estate before making distributions. However, prolonged silence combined with unexplained delays or an unwillingness to provide appropriate information can understandably cause concern.
Before seeking removal, it may be appropriate to write formally to the executor or their solicitor seeking information about the administration of the estate.
If satisfactory answers are not provided, further legal steps may need to be considered.
What If an Executor Is Misusing Estate Assets?
Allegations involving estate assets should be taken particularly seriously.
The Succession Act expressly addresses situations in which a personal representative wastes or converts estate assets to their own use.
Where there is evidence that assets are being improperly removed, transferred, sold or used, urgent legal advice may be required.
Depending upon the circumstances, court intervention may be necessary to protect the estate.
Can Another Person Be Appointed Instead?
Potentially.
Section 27 of the Succession Act gives the High Court power to grant administration and, where special circumstances make it necessary or expedient, allows the court to order that administration be granted to a person it considers appropriate.
The Courts Service also provides procedures for applications to appoint an administrator, including limited administrators in appropriate circumstances.
The correct solution therefore depends upon the stage reached in the probate process and the particular problem with the existing executor.
Can One Executor Remove Another Executor?
Not simply because they disagree.
Where several executors have been appointed, disputes can arise over property sales, valuations, distributions or how the estate should be administered.
One executor cannot ordinarily just decide that another executor is no longer an executor.
If the disagreement has become serious enough to prevent the proper administration of the estate, legal advice should be obtained about the options available.
Do You Have to Go to Court?
Not every executor dispute needs to end in court proceedings.
Sometimes a solicitor’s letter, proper estate accounting or discussions between the parties can resolve the underlying problem.
Where appropriate, negotiation or mediation may also avoid expensive litigation.
However, where removal, revocation of a Grant or another court order is required, a formal court application may be necessary. The Courts Service identifies removal of an executor as a court-order procedure requiring, among other things, a Notice of Motion and supporting affidavit evidence
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Frequently Asked Questions
Can a beneficiary have an executor removed?
A beneficiary may seek legal advice about taking action where there are serious concerns about an executor’s administration of an estate. Whether removal is appropriate will depend on the evidence and circumstances.
Can an executor be removed for taking too long?
Delay alone does not automatically mean an executor should be removed. The reason for the delay, its duration and its effect on the administration of the estate all need to be considered.
Can an executor be removed for not communicating?
Poor communication can be relevant, particularly where it accompanies prolonged delay or other problems. However, removal is a significant remedy and the overall circumstances must be considered.
What happens after an executor is removed?
The estate still needs to be administered. Depending on the circumstances, steps may therefore be required to have another appropriate person authorised to continue the administration.
Concerned About an Executor?
Disputes involving executors can become complicated quickly, particularly where estate property or substantial assets are involved.
Cullen O’Beirne Solicitors advise beneficiaries, executors and families in relation to executor disputes, delays in estate administration, estate accounts, disputed property sales, alleged executor misconduct and other probate litigation matters throughout Ireland.
If you are concerned about how an executor is administering an estate or you are an executor facing allegations from beneficiaries contact Cullen O’Beirne Solicitors for advice on the appropriate next steps.
