Choosing the right executors and trustees is one of the most important decisions when making a will or creating a trust. These individuals are entrusted with significant responsibilities and are expected to act honestly, diligently and in the best interests of those who benefit from the estate or trust.
Executors are responsible for collecting in the assets of a deceased person, settling liabilities and distributing the estate in accordance with the will or the rules of intestacy. Trustees, on the other hand, must administer a trust in accordance with its terms and act impartially between beneficiaries.
For these reasons, it is generally advisable to appoint people who are capable, trustworthy and likely to work effectively with any co-executors or co-trustees. However, problems can arise where an executor or trustee is unwilling or unable to carry out their duties properly, or where their continued involvement is no longer in the best interests of the estate, trust or beneficiaries.
Can an Executor or Trustee Be Removed?
In certain circumstances, the court has the power to remove and replace an executor or trustee. However, such applications are not granted lightly. The court will carefully consider all the circumstances before deciding whether removal is justified.
The overriding consideration is usually the welfare of the beneficiaries and the proper administration of the estate or trust. The court will consider factors such as:
- Whether the estate or trust has been administered properly.
- Whether the executor or trustee has failed to carry out their duties.
- Whether their continued involvement may cause harm to the estate, trust assets or beneficiaries.
- Whether there is a conflict between the executor’s or trustee’s personal interests and their duties.
- Whether replacing the individual would improve the administration of the estate or trust.
- Is Disagreement Enough?
Beneficiaries are often concerned when relationships between family members or other parties deteriorate during the administration process. While the court will take the views of beneficiaries into account, personal friction alone is rarely sufficient to justify the removal of an executor or trustee.
The court generally requires evidence that the difficulties are affecting the proper administration of the estate or trust. Mere hostility, disagreement or strained relationships will not necessarily be enough.
Practical Considerations
The court will also consider the practical consequences of any proposed replacement. Relevant factors may include:
- The costs involved in appointing a replacement.
- The stage that the administration has reached.
- The proportion of work already completed.
- Whether the benefit of removing the executor or trustee outweighs the additional expense and delay.
Applications to remove executors or trustees can be costly and should only be pursued where there are proper grounds for doing so. An unsuccessful or unnecessary application may result in the applicant being ordered to pay some or all of the other party’s legal costs.
Are There Alternatives?
Court proceedings are not always the most appropriate solution. In some cases, concerns can be addressed through alternative procedures that are quicker and less expensive.
For example, where questions have arisen about the administration of an estate, it may be possible to seek an inventory and account requiring the executor to explain how the estate has been dealt with and to provide details of the assets and transactions undertaken during the administration.
Where all parties are willing to cooperate, it may also be possible to agree a replacement without the need for contested court proceedings, significantly reducing the costs involved.
Specialist Advice is Important
Disputes involving executors and trustees can be complex, particularly where family relationships, substantial assets or allegations of wrongdoing are involved. Every case depends on its own facts, and obtaining specialist legal advice at an early stage can help identify the most appropriate and cost-effective course of action.
If you have concerns about the conduct of an executor or trustee, or if you have been accused of failing to fulfil your duties in one of these roles, our experienced private client dispute resolution team can advise you on your options and help protect your interests.
For further information, please contact our private client dispute resolution team at litigationreferrals@nalders.co.uk for a confidential discussion. Alternatively, please call us on 01209 714278. Nalders LLP has offices in Camborne, Truro, Newquay, Falmouth, St Austell, Penzance and Helston in Cornwall.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.