Removing a Personal Representative
If a personal representative is not acting in the best interests of the estate there are ways in which they can be removed.
How Personal Representatives are appointed
A Personal Representative (‘PR’) in this context means either an Executor appointed under a Will or an Administrator under an Intestacy.
Firstly, a PR has every right to refuse to act, so long as they have not intermeddled in the estate by carrying out any administration duties. In the case where an executor is appointed via a Will, they can complete a Deed of Renunciation. If the Will appoints an alternative executor/s, they can continue to act and file the Deed with the Probate Registry when applying for the Grant of Probate. If there are no other executors appointed, then an administrator would take on the position.
What are the duties of a Personal Representative?
A PR has a number of duties, as set out in s.25 Administration of Estates Act:
- to collect and administer the real and personal estate of the deceased;
- to produce a full inventory of the estate and render an account of the administration of the estate when required by the court; and
- deliver up a grant of probate or administration when required by the High Court.
A PR must act in the best interests of the estate and act impartially, even if they themselves are a beneficiary. A beneficiary might not be happy with the way in which a PR is conducting the estate administration, or they may not be happy with delays due to the PR refusing to engage proactively, or engage at all.
How to remove a Personal Representative
It is possible to apply to court to substitute or remove a PR; however, recourse to the court should only be undertaken as a last resort. The court expects parties to try and resolve a dispute by using Alternative Dispute Resolution, such as mediation, and we would strongly recommend that parties do so before issuing a claim. An application to remove a PR can be made either before or after the Grant of Probate has been issued.
If the Grant has not yet been obtained, an application to court pursuant to s.116 Senior Courts Act 1981 can be made to remove an executor, even if they have intermeddled in the estate. Therefore, in circumstances where an executor has intermeddled in estate affairs but is no longer able to act, an application under s.116 may be appropriate.
An application under s.50 Administration of Justice Act 1985 is most commonly made to remove a PR post-Grant (although, it is possible to remove an executor pre-grant via the s.50 route). Via the s.50 procedure, the court has complete discretion to make an Order to remove a PR – unlike the s.116 procedure. However, this does not mean that there is no requirement for the court to be satisfied that it should exercise its discretion.
What factors will a Court take into account when deciding whether to remove a PR?
When exercising their discretion, the court considers a number of different factors, including but not limited to:
- the beneficiaries’ welfare, although their unanimous wishes are not conclusive
- the cost of removing the PR
- the testator’s wishes
- the position of the estate administration i.e. what remains to be done?
Before applying to remove a PR, applicants should note that friction or hostility between them and the PR will not be enough by itself for the application to be successful. Furthermore, not every error or neglect of duty will lead to the PR’s removal; the act must be serious. That being said, if there are substantial and unreasonable delays being incurred, this may be enough to remove a PR.
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