Executors appointed under a will or administrators who obtain a grant of letters of administration in an estate where the deceased died without a will, are collectively referred to the “personal representatives”. There may be some circumstances, according to B P Collins’ contentious probate team, where a beneficiary of an estate might need to challenge the personal representatives’ behaviour and might ultimately need to have them removed.
What if a person representative does not want to act?
If a personal representative does not want to act in relation to an estate, before a grant is taken, they can:
- In the case of an administrator where there is no will, allow someone else to ‘pass over’ them and take the grant; or
- In the case of an executor where there is a will and there is more than one named executor, have ‘power reserved’ to them and allow the other executor(s) to take the grant;
- In the case of an executor where the is a will and there is no other executor, the executor can sign a document which lodged with the Probate Registry ‘renouncing’ probate to allow someone else to take the grant. Usually this would be one of the beneficiaries of the will.
These options are only available before the grant is obtained and provided that the personal representative has not ‘intermeddled’ with the estate. Intermeddling means dealing with the assets of the estate to an extent that you should not then be allowed to walk away.
Some actions are specifically not considered intermeddling, such as:
- Arranging the funeral;
- Moving assets or goods to a place of safety (for example, placing the deceased’s valuables in storage);
- Securing property (putting locks on a house).
However, any more involved actions will be intermeddling, such as:
- Collecting assets, for example, cashing in the deceased’s investments;
- Making reports to HMRC;
- Paying the estate’s debts;
- Filing inheritance tax returns;
- Applying for a grant of probate.
Why might a personal representative need to be removed?
There may be circumstances where the personal representative either wants to ‘stand down’ from the position or is no longer able to act or is no longer able to act in accordance with their duties. These might include:
- The personal representative is made bankrupt or convicted of a criminal offence, rendering them unqualified to act;
- The personal representative has lost mental capacity;
- The personal representative’s health has deteriorated so that they are no longer capable of acting;
- The personal representative may have a dispute or claim against the estate which means that they are in a position of conflict between their own interests and the interests of the estate.
On other occasions the beneficiaries may want the personal representative removed. This could be for a number of reasons, but for example the personal representative may have:
- Misused estate assets, such as loaning themselves money or living rent free in a property owned by the estate;
- Failed to produce proper accounts;
- Failed to take proper care to preserve the estate’s assets;
- Failed to administer the estate within a reasonable time period;
- Been in conflict with their position as personal representative (for example, they might have refused all reasonable offers to purchase a property owned by the estate because they want to buy it themselves at less than market value);
- Allowed the estate to lose money, for example by failing to comply with court orders and allowing a county court judgment to be obtained against the estate.
How to remove a personal representative
Once a personal representative has ‘intermeddled’ with the estate, they can only be removed by an order of the court. The application is made under s50 Administration of Justice Act 1985.
A s50 Application asks the court to exercise its discretion to remove a personal representative. The application might be made by the personal representative themselves or by the beneficiaries. However, the court takes the role of personal representative seriously and will need to be convinced that it is in the best interests of the estate for the personal representative to be removed.
For example, a personal representative who applies to the court for removal simply because it is no longer convenient for them to act is unlikely to persuade the court to remove them, especially if there is no one suitable to take over the position or it would cost the estate money to change personal representatives.
If a s50 Application is to be made in the case of a sole personal representative, the court will need to appoint a new representative in place of the old one. If there is a second executor named in the will or a suitably qualified and willing beneficiary, they might be appointed. However, s50 Applications are often made in circumstances where there are disputes between the parties to the will or the previous personal representative has made a bit of a mess of the administration. In those circumstances, it is often advisable to appoint an independent professional administrator. This is usually a solicitor who is qualified to administer estates and is willing to take on the appointment.
At B P Collins we can advise and represent you in relation to s50 Applications. We also have solicitors who act as independent administrators where the personal representatives need to be removed in favour of an independent professional.
If you require advice in relation to removing a personal representative, please contact our contentious probate lawyers on enquiries@bpcollins.co.uk or 01753 889995.
