Monthly Archives: April 2017

Removing Unwanted Executors

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Removing Unwanted Executors


The role of the executor is chiefly to oversee the estate administration, account for all assets, pay all taxes and liabilities, and ensure that the estate is distributed in accordance with the wishes of the beneficiaries as efficiently as they can.

However, some beneficiaries may grow suspicious of the estate’s executor. They may feel unfairly overlooked and neglected, or believe that the executor is abusing their powers or failing to meet their duties.

The bad news is that removing an executor can be extremely difficult.

If the executor is unwilling to retire from their role, they may need to be removed by a court order. This is particularly problematic if the executor has already successfully obtained Probate in their name and / or received estate assets.

In order to remove an executor, a beneficiary must demonstrate that the executor is failing their “fiduciary duties”– their duties of faith – to the detriment of the estate. This could include poor accounting, mistakes which constitute negligence, loss of the executor’s capacity during the administration, refusing to take notice of beneficiaries, failure to submit tax returns, fraud, or other abuses of power.

If a beneficiary can show sufficient proof of a breach of duty, they can apply to the court for an order to have the executor removed and substituted. Note though, the evidence must demonstrate a clear, specific breach of a fiduciary duty: personal dislike, or vague assertions that the executor may not be acting in accordance with a beneficiary’s own desires, will never be sufficient.

In addition to this, quite apart solid grounds of breach being found, applying to the court will take additional money, time and legal assistance.

It can therefore be considerably difficult to remove an executor. The best advice is to select suitable executors in the first instance. The old adage that “prevention is better than the cure” very much applies to appointment of an inappropriate administrator.

What is a Grant of Representation?

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Many people are familiar with the idea of the administration or probate process; however, most do not actually know what a Grant of Representation is, or that there are different types.

Ultimately, the Grant of Representation is a document sealed and issued by the Court, which provides the Executors or Administrators of an estate with legal authority to access, collect in and distribute the deceased’s assets.

Before issuing the Grant, the Court will look at two elements:

  • Whether or not there is any document which can be considered a testamentary document, capable of being admitted to probate or annexed to a Grant of Administration; and


  • Who is entitled to a Grant of Representation of the deceased’s estate (regardless of whether there is any testamentary document).

Once issued, the Grant is effectively conclusive evidence of the terms of any Will and its execution, or that the deceased died without a valid Will. It is also confirms the authority of the Executors/Administrators to act.

There are also different types of Grant of Representation:

Grant of Probate

A Grant of Probate is issued only to an Executor appointed by a Will or codicil. Up to four executors can be named on a Grant of Probate and if there are more than this, power will be reserved to them. Any of the executors named in the Will are authorised to take out the Grant of Probate and deal with the administration of a deceased’s estate.

Grant of Letters of Administration with Will Annexed

This is issued under circumstances where the Executors of a Will appoint someone else to apply for Grant and deal with the estate on their behalf, because they cannot or do not wish to deal with the administration for any reason. A Grant of Probate cannot be issued because the appointed Executors under the Will are not the people applying for the Grant. In this instance, a Grant of Letters of Administration is issued with a copy of the Will annexed. This may also apply where the appointed Executors are minors and require someone else to apply for a Grant on their behalf.

Grant of Letters of Administration

A Grant of Letters of Administration is issued when there is no Will available or capable of being admitted to proof and the deceased therefore died intestate. The order of entitlement to apply for the Grant in these circumstances follows the same order of entitlement as under the rules of intestacy. A personal representative can be appointed to act on behalf of the beneficiaries, however, all of the entitled beneficiaries must generally consent to that person applying for a Grant.



Generally, a Grant is required before any estate can be dealt with after death, however, there are some circumstances where a Grant may not be required. For instance, there is no need to obtain a Grant where any property is owned as joint tenants and will pass to a spouse or joint owner automatically by survivorship. When some liquid assets held, i.e. bank accounts, investments or policies, are below a specific value then there may also be no need to obtain a Grant. Some banks will release funds in an account up to the value of £50,000; on the other hand, some banks have a lower limit and anything above this means that they require sight of a Grant before they will release funds. This is, of course, purely at the discretion of the individual institution. There is also a common misconception that if you have a valid Will then there is no need for a Grant to be obtained. However, the need to obtain a Grant is ultimately dependent on the assets held by the deceased and the value of those assets, regardless of whether there is a Will or not.