Solicitors Specialising in Probate Disputes Involving Executors
What is an Executor?
An executor is the person named in a will to serve as the administrator of the estate (ie the assets and property left behind by the person who made the will, who is known as the testator). The role of the executor is to ensure that all of the debts owed by the testator incurred before their death are settled in full, and that the estate is correctly distributed among the beneficiaries (ie the people or organisations who have been left part of the estate under the will). But unfortunately for those taking on this responsibility, according to reports in The Times in September 2024, the number of executors being sued in the High Court increased by 21% between 2022 and 2023, with 87 cases in 2023, up from 72 cases in 2022. And it’s widely understood that this was just the tip of the iceberg – with these vast majority of executor disputes being settled out of court.
Click here to read more about the duties of an executor.
Concerned about a possible Executor Dispute? Call our specialist solicitors on FREEPHONE 0800 1404544 for FREE initial phone advice – with no strings attached.
Executor Disputes – How Do They Crop Up?
Dealing with a bereavement will be difficult, upsetting and traumatic. Apart from the direct emotional impact of the bereavement, the seemingly cold reality of having to deal with funerals, burials and the deceased’s last will and testament can prove rather more upsetting again.
Many people, quite understandably, cannot quite bring themselves to dealing directly with the estate of their loved one following their passing. That’s why so much trust is placed in the executors and trustees. It is quite normal to assume that the correct legal process will always be followed. However, sadly, this is not always the case.
Unfortunately, executor disputes are very common and widely seen by some as little more than a deeply regrettable and unfortunate, but ultimately, inevitable risk. And with the ongoing change in the make up of UK families – with high levels of divorce, lower levels of marriage and increasing numbers of those with a child or children from a previous relationship – and with the huge hike in property prices in recent years, the number of these kind of disputes looks likely to continue rising.
Although the specific instances where an executor dispute can arise is fairly broad; the most common reason behind them all is that a beneficiary feels, or has reasonable grounds to suspect, that the executor is not properly following the wishes and instructions of the testator.
Some beneficiaries also feel especially upset where there is a delay in the release of their share of the estate to them.
Claims against executors
Often, an executor is specifically named in the deceased’s will. If it is not, a personal representative will undertake the role of executor. If the executor fails to deal with the debts and liabilities of the estate (including tax liabilities) or has failed to gather assets and distribute them properly, a claim may be able to be brought against the executor.
To do so, you must be able to prove the incapability or unsuitability of the executor.
There are many possible reasons you might want to make a claim against an executor, but some of the more common reasons include:
• a failure to properly pay off the debts and liabilities of the deceased from the estate
• a failure to fully pay any of the estates liabilities for tax
• not gathering in all of the assets of the deceased;
• a failure to properly distribute the estate – that can even be caused by failure to correctly interpret the will – see below
• not gathering in all of the assets of the deceased;
• a failure to properly distribute the estate – that can even be caused by failure to correctly interpret the will – see below
• delays in handling the estate – being appointed an executor is a big responsibility, especially where there are complex finances or unhappy beneficiaries – and it’s quite common for executives to struggle or simply be reluctant to handle all the complex legal and admin issues surrounding estate administration
• problems with ownership and occupation of the family home. It’s not unusual for family home to need to be sold to cover debts and to share the proceeds of the estate between beneficiaries. But often people already living in the family home – whether they are spouses, children or cohabitees – simply don’t want to leave and want to remain there without paying rent. And that can create enormous pressure on executors, especially if they are also family members or beneficiaries of the will themselves
Worried about improper behaviour by trustees or executors?
If you are listed as a beneficiary, creditor or next of kin, you might well have concerns that an executor or trustee is not dealing with matters appropriately or satisfactorily.
If this is the case, and you lost out financially, you might be able to make a professional negligence claim. The outcome of a professional negligence claim could well be that the executor or trustee could be removed and replaced – or even that you could receive significant financial compensation to cover any loss
Click here to read more about professional negligence claims.
Executor Disputes – How we can help you
Contested probate claims, including executor disputes, are steadily getting more common. And what’s more they involve a complicated area of law – often with considerable sums of money at stake.
And executor disputes are generally more commonly found where executors have decided to deal with probate themselves.
Click here to read more about the risks of DIY probate.
That’s why, if you’re thinking of getting involved in an executor dispute of some kind, you need to make sure that your solicitor has some solid specialist experience in this area – even if that means not instructing your usual local solicitor but travelling a bit further to see them – or perhaps instructing the solicitor largely using phone and email.
Our experienced team has plenty of solid experience of executor and trustee disputes.
We regularly run contested will and inheritance claims, including executor and trustee disputes, not just locally throughout Wiltshire, Hampshire, Somerset and Dorset but nationwide, from our four offices in Salisbury, Andover, Fordingbridge and Amesbury.
Can I Force An Executor to Step Down?
Any beneficiary to a will who is worried that the executor of a UK will is not performing his duties properly can take action.
The executor’s duties are clearly set out in the “Executor’s Oath” [as contained in Section 25 of the 1925 Administration of Estates Act] as follows:
a) collection and administration of the deceased’s estate;
b) to exhibit on Oath a full inventory of the Estate and if requested by the court, to provide a full account of the estate administration of the Estate to the Court;
c) delivery of Grant of Probate or administration to the High Court, if requested
In that kind of situation the beneficiaries should first write to the executor, requesting an explanation of their behaviour. If the reply is not satisfactory, the next step is to try and resolve the dispute by negotiation – and to get the executor to step down voluntarily. However if that fails or worse still you don’t get an answer at all, then the last resort is for the court for the removal or replacement.
Our experienced contested probate solicitors can help you in trying to remove an executor.
Alternatively, an executor can voluntarily choose to step by “renouncing probate”.
Click here to read more about Renunciation of Probate
Errors in Interpretation of the Will
There have been lots of legal cases where there has been disagreement over the interpretation of wording in a Will.
A Will which has been made at home using a DIY kit, or a Will which has not been drawn up by a lawyer can be badly written. A Will drawn up by a professional can take into account the most complex of situations such as marriages where both parties have children from previous relationships, and can contain trusts and provisions to take account of this. Wills may be full of “legal-ese” which is everyday language to a lawyer, but lay people can often struggle to understand what the Will actually says.
One famous case which illustrates the interpretation point is the case of someone who wrote a Will saying he left what he owned “All for Mother”. The Will was disputed, and it was later established that what the deceased really wanted was to leave everything to his wife, who he called “Mother”.
Things written in a Will are not always as straightforward as they appear, and if you are not familiar with the jargon and wording used, it is very easy to make a mistake when interpreting the Will. And that’s another reason why many people choose their solicitor as the professional executor of their will.
What can I do if the executor is also a solicitor, bank or building society?
If the executor you are having problems with is a solicitor, and simply refuses to give up that role, then we can approach the senior partner of the firm involved or alternatively raise the issue with the Solicitor Regulation Authority.
We can also help if the unresponsive or unsatisfactory executor turns out to be either a bank and building society.
It’s also worth noting that banks and building societies have a reputation for being very expensive in their role as executors – usually charging significantly more than specialist probate solicitors. They do seem to charge for just about everything – most banks for example, seem to make an annual charge for the storage of your will with them (which we happily do free of charge, whether not we actually drafted your will originally).
The real damage caused by executor disputes?
If you’re a beneficiary of a loved one’s estate and are thinking of making some form of claims against the executors, please do think twice, particularly if the executor is a close friend or family member, as is often the case.
Why? Our team has run numerous contested probate, inheritance claim and executor dispute cases over the years. We understand that these claims can be complicated, acrimonious and can drag on for years. And in our experience, far too often the most significant outcomes are that not only is a large part of the estate spent on legal fees, but often worse still, there is a real and lasting damage caused to close friendships and family relationships.
Taking action – the need for specialist solicitor
If you believe you could have a reasonable claim against the trustee or executor, it is really important to speak to a specialist contested probate and disputed wills solicitor. The legal and evidential issues involved making or defending these kind of claims are often complex – and you really need someone with the right expertise. Our team have that experience.
How we can help
• We will discuss the various options available to – whether it be to launch a claim for professional negligence claim against the trustee or executor of the deceased’s estate – or to consider some alternative way forward for you to put the matter to rest once and for all.
• If you are considering making a claim, our initial view on whether that claim is likely to be successful
• We will explain your funding options – and in particular see whether any legal expenses insurance you hold might cover your negligence claim against executors and trustees.
Our specialist team can represent you wherever you live in England and Wales. We can run your negligence claim by phone, e-mail or Zoom ot Teams video call without the need for you to visit our offices – you can meet one of our team at our offices in Wiltshire, and Hampshire.
FAQs
Is it a good idea to have a solicitor as an executor?
The job is time-consuming and often complex, particularly if Inheritance Tax is payable. The executors must also prepare detailed estate accounts once they have finished winding up the estate.
Relatives appointed as executors frequently struggle to complete estate administration correctly. An executor can be personally liable for mistakes they make that cause a loss to the estate.
If family members do not believe that the executor is handling the administration efficiently, it is common for disagreements to occur. It can be particularly hard for family executors to handle matters at what is usually a difficult and stressful time following the loss of a loved one.
Having an experienced probate solicitor as an executor avoids these difficulties.
Can you remove a solicitor as executor?
If a Will appoints a solicitor as an executor but the family would rather someone else take on the role, the solicitor will usually step aside.
If there are concerns that an estate administration is not being handled correctly, then it is also possible to ask the court to remove an executor.
How to prove executor misconduct in the UK?
If you want to ask the court to remove an executor, you must give a valid reason. To prove executor misconduct in the UK, you will need to have evidence of failures on the part of the executor, such as:
• Excessive delays
• Failure to provide reasonable information to the beneficiaries
• Failure to communicate with the beneficiaries
• Self-dealing, for example, buying an asset from the estate themselves at an undervalue
• Allowing someone to live in an estate property without paying full market rent
• Misappropriating estate assets
• Mismanaging the estate
• Causing a loss to the estate
• Not distributing the estate to the beneficiaries
