Executor's duties - Breaching your role as an executor of a Will

Who should I appoint as an executor?

A testator considering who to appoint as their executor should think carefully about who they are appointing, and whether that person can appropriately fulfil the role. If they are appointing more than one person, they should also consider whether those individuals can work together and agree a way forward in respect of the administration, or whether there is likely to be any conflict.

Anyone appointed as executor by a Will should carefully consider whether they wish to take up the role before taking any action in relation to the estate.

Can I refuse to be an executor?

If an appointed executor does not want to or cannot act, and they have not taken any steps in relation to the administration of the estate, they can renounce from their duties by completing form PA-15 and providing the original to whoever will apply for probate in their place.

However, once an executor has commenced their duties, they will be unable to renounce and, instead, would need to apply to the court for removal, an application which is time consuming and costly.

If an executor decides to take up the role, they must act in the best interest of the estate and the beneficiaries, remain neutral in any dispute, and not favour one beneficiary over another.

What does an executor of an estate do?

An executor must administer the estate in a timely manner, obtain a grant of probate, collect in the assets of the estate, account to HMRC and pay any debts before distributing the remaining available funds in accordance with the Will or intestacy rules. Although, in practice, this is often done by a family member (if they are not an executor), an they may need to register the death and arrange the funeral.

What happens if an executor fails to act within their duties?

An executor who fails to act within their duties may face personal liability and must account to the beneficiaries for any losses that occur as a result of those failures.

Can you remove an executor from a Will?

One of the most common claims brought against executors is for their removal from their position. The courts do not like to remove an executor who has been appointed by the testator, and therefore, there must be good reason for their removal. Such reasons can include a claim that they are not suitable for their role, for example, if they have been convicted of certain crimes or are in prison, they are incapable of their role, for example, where they have a mental or physical disability that prevents them from carrying out their duties, or where they have acted improperly, for example, where they have stolen money from the estate, have mismanaged the estate, or are failing to keep accurate records.

 It is, however, important to note that a Court will not remove an executor because they do not get on with the beneficiary, and their removal must be paramount to the timely administration or safeguarding of the estate.

Reasons to remove an executor

An executor who either acts in a way that causes a loss to the estate, or who fails to act, causing a loss to the estate, is likely to be subject to a claim from the beneficiaries to compensate the estate for their losses. One example of this would be where an executor fails to sell a property worth £500,000 for several years, with no good reason.

Over those years, the property falls into disrepair. When it is sold, five years later, it is worth £300,000. The beneficiaries, in that instance, may have a claim to reimburse the estate for the difference of £200,000 as a result of the executor’s failure to act.

If an executor distributes the estate incorrectly, and not in accordance with the applicable Will or intestacy rules, then they may be personally liable to the correct beneficiaries for the sum that they should have received. Likewise, if a debt is due and the executor does not pay it, but instead distributes the estate to the beneficiaries, then they may be personally liable to the creditors if they are unable to recover the funds from the beneficiaries to pay the debt.

If an executor pays a debt that is not due because it is outside the statutory time frame for a debt to be paid, which is usually six years from the date it became payable, they may face a claim to recover the value of the debt incorrectly paid.

More and more often, we are seeing claims against executors who have used estate funds for their own purposes in breach of their duties. An executor who has used the deceased’s funds for their own purposes may not only face criminal action, but also a claim by the beneficiaries to remove them from office and to recover the funds taken.

There has also been a big rise in cases where attorneys appointed by the deceased under a lasting power of attorney during their lifetime have used the deceased’s funds for their own purposes and have financially abused the deceased.

An executor who uncovers such financial abuse has a duty to recover the sums incorrectly taken by the attorney during the deceased’s life and to bring a claim against that attorney

to recover those losses. This can be difficult where the attorney was a family member.

Like the executor, the attorney may also face criminal action. An executor who is found to have acted improperly or to have breached their duties may face court proceedings in one of the ways I’ve already set out. In addition to having to personally make good any losses caused to the estate, the executor in question may be ordered to pay the parties costs of that action having only been necessary because of their actions.

It is important to note that an executor involved in proceedings through no fault of their own, such as in respect of a claim against the estate for financial provision, must remain neutral in respect of such a claim and only provide such information as is necessary for the parties and the court to settle the dispute. If they begin to defend the proceedings in their role as executor, they too may be at risk of an adverse costs order.

Key takeaways for executors and testators

A testator appointing an executor in their Will must consider whether the person, or persons, they are appointing can fulfil their duties, work together, agree on decisions and remain free from conflict.

Likewise, before agreeing to act, an executor must consider whether they are free from conflict, can fully undertake their role and meet their duties. Whilst acting, the executors must ensure that they are acting appropriately, fulfilling, and complying with their duties. Executors should take legal advice to ensure that they comply with their duties and to reduce the risk of any personal liability.

For more information please get in touch with one of our Contentious Probate solicitors by email or call on +44 (0)3333 231 580.