Resolving problems with executors or trustees

Executors and trustees have important legal duties to the people who benefit from an estate or trust. When they delay, mismanage assets, act in their own interests or refuse to communicate, beneficiaries can be left out of pocket and out of patience. Our specialist solicitors can advise you on holding an executor or trustee to account, and, where necessary, having them removed.

Call us on 0161 930 5151 or email willdisputeteam@gorvins.com for a confidential conversation about a problem with an executor or trustee.

What do executors and trustees do?

When someone makes a will they name one or more executors to administer their estate. If someone dies without a will, the person who takes on that role is called an administrator. Together, executors and administrators are known as personal representatives. A trustee, by contrast, manages assets held in a trust for the benefit of others, often over a much longer period.

All of them are held to high legal standards. They must act in the best interests of the beneficiaries, keep proper accounts, act even-handedly between beneficiaries, avoid conflicts of interest, and administer the estate or trust in a reasonable time.

Common problems with executors and trustees

Disputes commonly arise where an executor or trustee:

• delays the administration without good reason, well beyond the usual timescales
• fails to communicate or refuses to provide accounts or information
• sells property for less than it is worth, or fails to sell it promptly
• fails to insure or protect estate property, which is then damaged or lost
• distributes the estate incorrectly, or pays the wrong people
• misinterprets the will or the terms of the trust
• takes estate money for themselves, or otherwise acts in their own interests
• has a conflict of interest that prevents them acting fairly

Where money has gone missing or assets have been wrongly transferred, our page on claims against property or assets may also be relevant.

The executor’s year

The law recognises that administering an estate takes time. Executors are generally allowed a reasonable period, often referred to as the “executor’s year”, to gather in the assets, settle debts and tax, and distribute the estate. Beneficiaries are not usually entitled to insist on their inheritance before then. Delay only becomes a real problem when it goes well beyond a reasonable period without good reason, or when it is a symptom of something more serious.

How to resolve a dispute with an executor or trustee

Removal through the court is a last resort. There are usually less drastic and less expensive steps to try first:

• Request information and accounts. A beneficiary is entitled to a proper account of how the estate or trust is being dealt with. A formal request often prompts action.
• Ask them to step down. An executor or trustee who has not yet taken up the role, or who is finding it a burden, may be willing to renounce or retire voluntarily.
• Negotiation and mediation. Many disputes are resolved without court once the issues are put formally and independently.
• Court application. Where cooperation fails and the administration is at risk, an application to remove and replace them may be the right course.

How to remove an executor or trustee

If an executor or administrator will not step down and the estate is suffering, the court can remove and replace them. The main routes are:

• Before a grant of probate — under section 116 of the Senior Courts Act 1981, the court can pass over an executor and appoint someone else where special circumstances make it necessary or expedient.
• After a grant of probate — under section 50 of the Administration of Justice Act 1985, the court can remove a personal representative and appoint a substitute, on the application of a beneficiary or another personal representative.

Importantly, you do not have to prove wrongdoing to have an executor removed. Following cases such as Letterstedt v Broers and Harris v Earwicker, the court’s guiding concern is the welfare of the beneficiaries and whether the estate is being administered properly. Serious misconduct will usually justify removal, but so can a breakdown in trust or a conflict that is holding up the administration, even without a finding of fault. Confidence level: Very confident on the statutory routes and the guiding principle, both being settled law.

Can a trustee be removed?

Yes. Trustees can be removed and replaced in similar circumstances, whether under the terms of the trust itself, under statutory powers, or by the court exercising its inherent jurisdiction where a trustee’s continued involvement is not in the beneficiaries’ interests. The same guiding principle applies: the welfare of the beneficiaries and the proper administration of the trust.

Holding an executor or trustee financially liable

Removing an executor or trustee does not, by itself, recover any loss they have caused. Where their breach of duty has caused a financial loss to the estate or trust, for example by selling an asset at an undervalue or paying the wrong beneficiaries, a separate claim can be brought to make good that loss. We can advise on both removal and recovery together where appropriate.

How Gorvins can help

Our Will Disputes and Contentious Probate team acts for beneficiaries, and for executors and trustees defending their conduct. We can:

• advise on your rights to information and accounts as a beneficiary
• press an executor or trustee to act, or to step down voluntarily
• negotiate and mediate to resolve the dispute without court
• apply to remove and replace an executor, administrator or trustee
• bring or defend claims for losses caused by a breach of duty
• advise executors and trustees who are facing criticism or a removal application

Where the underlying concern is the validity of the will, see our page on contesting a will. Where it concerns a trust specifically, see trust disputes.

Gorvins is a Legal 500 recognised firm based in Stockport, acting for clients across Greater Manchester, the North West and nationally.

Call us on 0161 930 5151, email willdisputeteam@gorvins.com, or complete the enquiry form below and we will call you straight back.

Executor and trustee disputes FAQs

Can a beneficiary remove an executor?

A beneficiary cannot remove an executor themselves, but can apply to the court to have one removed and replaced, under section 50 of the Administration of Justice Act 1985 after probate, or section 116 of the Senior Courts Act 1981 before a grant. The court’s focus is the welfare of the beneficiaries and proper administration of the estate.

Do I have to prove the executor did something wrong?

No. You do not have to prove wrongdoing or fault. The guiding principle is whether the estate is being administered properly. A serious breakdown in trust or a disabling conflict of interest can be enough, even without a finding of misconduct.

How long does an executor have to administer an estate?

Executors are generally allowed a reasonable time, often called the “executor’s year”, to deal with the estate. Beneficiaries usually cannot insist on their inheritance before then. Delay becomes actionable when it goes well beyond a reasonable period without good reason.

What can I do if an executor won’t communicate or provide accounts?

As a beneficiary you are entitled to a proper account of the administration. A formal request often resolves the issue. If it does not, we can apply to the court to compel information or, in serious cases, to remove the executor.

Can a trustee be removed too?

Yes. Trustees can be removed and replaced under the terms of the trust, under statutory powers, or by the court, where their continued involvement is not in the beneficiaries’ interests.

Can I recover money an executor has lost or taken?

Yes. Where an executor or trustee has caused a financial loss through a breach of duty, a separate claim can be brought to recover that loss, alongside or instead of removal.