Executor misconduct: When estate administration goes wrong

When an individual makes a will, they choose one or more people to act as executors. Executors are legally responsible to administer the deceased’s estate in accordance with the terms of the will.

It is the executor’s responsibility to collect in all assets of the deceased person’s estate. The executor must then pay out any liabilities and distribute the estate to each of the named beneficiaries according to the deceased’s will. Other duties of an executor include the following:

• Working out whether any Inheritance Tax or other taxes is due, and paying it
• Applying for Probate

One difficulty executors can sometimes face is the logistical issue of how to pay Inheritance Tax when they do not have the benefit of a Grant of Probate to be able to collect in funds, which can lead to delays in administering the estate.

Executor’s duties to beneficiaries

An executor has important obligations to all named beneficiaries within the will. An executor’s obligations include, but are not limited to the following:

1. They have a fiduciary relationship (relationship of trust) with the named beneficiaries. This means they should not put their own needs or wants above their obligations as an executor.
2. They must maintain the deceased’s estate for the benefit of the beneficiaries and ensure there is no waste, for instance by ensuring that adequate insurance is in place and that any property is secured.
3. They must keep a proper record of any payments such as funeral expenses and the costs of receiving professional advice.
4. Executors have to bear in mind they cannot be compelled to distribute the estate before one year has passed since the deceased’s death, but they should ensure they can justify any delay beyond that time period.

Re Totton:  the consequences for executors

Problems can arise when an executor does not comply with these obligations and there can be serious consequences on such executors. In the recent case of Totton (Deceased) Re [2022] EWHC 2345 (Ch), the judge (Mr Justice Leech) considered conduct of an executor which had included the following:

1. The Executor failed to provide upon request any information to the Claimant’s solicitor setting out the assets and estate of the Deceased.
2. The Executor failed to swear and serve on the Claimant’s solicitor an affidavit setting out the information in point 1 above.
3. The Executor failed to provide a full inventory of the estate of the Deceased or an up-to-date account of the administration of the estate or an account in full of the Executor’s dealings with the estate.

The judge held that the executor’s conduct in not complying with his obligations as executor amounted to “serious, contumacious flouting of orders of the court” and merited an immediate custodial sentence, suspended for a period in order to allow the executor one last chance to comply with his executor obligations.  This case shows that the penalties for executors can be significant and serious.

What can I do about a difficult executor?

The first step is usually to write a letter to the executor stating your concerns, for instance requesting information regarding the administration of the estate or the issue which you need to have addressed by them.

If this is unsuccessful, it is possible to make an application to court for the removal of the executor and the appointment of a new executor in their place. This replacement executor might be one of the beneficiaries or could be a professional such as a solicitor.  However, the Court will not remove an executor lightly because the Court will try to respect the testator’s wish in appointing that person as an executor. Generally speaking, the court will only remove an executor in the following circumstances:

1. The executor has committed a crime, so it is unreasonable or impossible for them to continue dealing with the assets of the estate;
2. The executor has a mental or physical disability or illness preventing them from performing their duties; or
3. The executor is unsuitable for the position (for instance they might have been dishonest or have caused a loss to the estate or they have failed to comply with their statutory obligations or any court orders made in respect of the estate)

If either you or someone you know has been affected by a difficult executor or have been accused of executor misconduct, we would be happy to have an initial no-obligation discussion of the background and what steps might be appropriate.  Please complete our enquiry form below and a member of our Contentious Probate Litigation Team will be in touch.