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10th April 2017

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.