Removal of an Executor

Losing a loved one is difficult enough without having to worry about an Executor who is not carrying out their responsibilities as set out in the Will. If an appointed Executor is not performing their duties or is unable to do so, you may want to remove them.

Our expert contentious probate solicitors can advise you on removing an Executor, taking some of the stress out of the process, with your loved one’s best interests in mind.

What are the grounds for removing an Executor?

To remove an Executor from a Will, the Beneficiaries can apply to the court under Section 50 of the Administration of Justice Act 1985. They will need to prove to the court that the Executor’s continued involvement in that role will hinder the administration of the estate.

Removal of an Executor who is no longer capable of carrying out their duties

Many people make their Wills when they get married or have children and do not update them, meaning that often, named Executors are too old and/or are incapable of carrying out their duties by the time the testator has died, and the Will is read.

If an Executor is incapable of carrying out their duties due to mental or physical disability, the Beneficiary will need to apply to the court for them to be removed, with evidence, e.g. a certificate from the Responsible Medical Officer or the patient’s doctor. What happens next depends on the circumstances, for example:

  • Removing an Executor before probate: if there are multiple Executors, those with full mental capacity will need to apply for a Grant of Probate with ‘power reserved’ to the Executor who lacks the capability.
  • If the Will includes a substitute Executor, they will take the incapacitated Executor’s place.
  • If the incapacitated sole Executor has a Lasting Power of Attorney or Enduring Power of Attorney in place, their Attorney can act as a Personal Representative in their place.

If the sole Executor loses capacity after the Grant of Probate has been issued, a new Personal Representative must be appointed. If they have an Attorney through an LPA or a Deputy through the Court of Protection, they may be able to apply for a new Grant.

What happens if an Executor of a Will does not want to act?

If an Executor does not want to take up their duties and surrender their position, a solicitor can complete a Deed of Renunciation (including by filling out a Form PA15). This document cancels their role as Executor and enables another Executor or relevant person to carry out their responsibilities instead.

Renouncing as an Executor only frees them from the responsibility of dealing with an estate; it does not stop them from being a Beneficiary (which is called ‘disclaiming’ your interest).

An Executor cannot resign from their position once they’ve started acting in that capacity. This is known as ‘intermeddling’ and requires a court order.

How to remove an Executor who is not carrying out their responsibilities

If you believe an Executor is not fulfilling their role as intended by statute or in the Will, you should notify them of your reasons and ask them to explain their actions (or lack thereof). If you are not satisfied with the Executor’s explanation, you can apply to the court to remove them. This is not straightforward, however, as the court holds the testator’s choice in high regard.

The court doesn’t have to find wrongdoing on the part of the personal representatives. Their guiding principle is whether the administration of the estate is being carried out properly and in the Beneficiaries’ best interests.

The application must be supported by evidence, including a witness statement setting out the reasons why you wish to remove the Executor. If you believe that an Executor should be removed, you must get legal advice as soon as possible. A specialist contentious probate solicitor can advise you on what to do next and what evidence might be required to support your application for the removal of Executors.

Can Beneficiaries of a Will remove an Executor?

Yes. Either Beneficiaries or Executors, themselves or on their behalf, can apply to remove an Executor from a Will if they believe that they are unable to perform their duties.

Executors are legally responsible for administering the estate and therefore have the power to make decisions relating to that, whilst always keeping the Beneficiaries’ best interests in mind. However, if a Beneficiary has concerns about an Executor’s behaviour or decision-making, they can seek their removal.

Removal of an Executor FAQs

The cost of removing an Executor varies from case to case and depends on whether the application is opposed or by consent.

Our contentious probate solicitors can advise you of costs during your initial meeting and will keep you informed as the case progresses.

Again, this depends on the circumstances and complexity of the case. However, it can take around 12 months for the claim to reach court for a final hearing, if applicable.

Contact our contentious probate solicitors

For common sense advice about the removal of Executors, get in touch with our expert inheritance disputes and contentious probate lawyers. Call 0117 325 2929 or fill out our online enquiry form.


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