Disputes with executors; and how to resolve them
As a solicitor dealing with will disputes, I know that beneficiaries can sometimes feel deeply frustrated by the behaviour of an executor (also called a ‘personal representative’) of a will. The emotional fallout from a bereavement sometimes leads to a toxic atmosphere and relationships can quickly sour. Very often this situation arises where executors and/or beneficiaries are not entirely sure of their rights and responsibilities.
To be clear, this blog is not about claims against an estate where there is either (a) a concern that a will isn’t valid, or (b) a ‘disappointed beneficiary’ who has received nothing, or less than they feel they ought to have received.
Sometimes the estate itself will bear most if not all of the legal costs of a dispute between an executor and a beneficiary. But that isn’t always the case and an executor or a beneficiary might end up personally liable for legal costs if they do not behave reasonably.
What sort of disputes typically arise?
- A beneficiary is given no information about a will; what can they do to get a copy and to find out what’s in the estate?
- An executor (or a solicitor on their behalf) is dragging their heels and won’t answer queries about the administration of the estate.
- An executor is behaving badly; maybe living in the deceased’s house when they have no right to do so/trying to buy a property from the estate at an undervalue/taking the deceased’s money or property for themselves. Perhaps they have financially abused the deceased during their lifetime.
What rights does a beneficiary have?
- You are entitled to be told if you are a beneficiary or not
- Once a grant of probate has been taken out by the executor, the will, if there is one, becomes a public document and you are entitled to apply online for a copy of it and the grant for a nominal charge. No one is notified if you do this. Or, if probate hasn’t been granted yet, you can complete a form PA1S to ask to be sent a copy of a probate if it’s granted in the next 6 months (a ‘standing search’). If the estate includes a property, it can’t be legally sold or transferred without a grant.
- You should be kept informed and treated fairly and equally alongside any other beneficiaries.
What information should a beneficiary receive?
As a beneficiary you may want information or documentation, for example copies of letters or other evidence of how the executor has managed the estate. However, a beneficiary has no entitlement as of right to such documentation – it is at the executor’s discretion to disclose any requested information.
An executor should consider the following in deciding whether to allow a request:
- The nature of the beneficiary’s interest
- The information the beneficiary is requesting
- The reasons for the request for information
- Whether the information may be confidential (eg relevant to one beneficiary but not another)
- The cost to the estate of providing the information
A beneficiary is entitled to a report (called ‘estate accounts’) of all income, expenses and distributions from the estate within a reasonable period of time BUT executors are under no obligation to distribute the estate within the first 12 months from the date of death. This is known as the ‘executor’s year’.
How is a dispute resolved?
An argument about an executor’s failure to provide information about the estate, after the ‘executor’s year’ can often be tackled relatively easily by a letter before action followed by a “summons for inventory and account”; Section 25 of the Administration of Estates Act 1925 provides that a personal representative is under a duty when required to do so by the court, to exhibit on oath (i.e. in an affidavit which is a sworn statement) a full inventory of the estate and an account of his or her administration of it.
This is the right course of action to take where, for example, a beneficiary believes that the value of the estate is more than has been suggested by an executor.
An application can be made pursuant to Rule 61 of the Non Contentious Probate Rules for an inventory and account by way of a document called a ‘summons’, supported with an affidavit or witness statement from the beneficiary. A hearing then takes place in front of a Probate Registrar and if no reasonable explanation is forthcoming the executor is usually ordered to pay the costs involved in relation to the application (in my experience usually in the region of £3-4,000).
Alternatively, if the dispute is more about amending the terms of the will, beneficiaries will often come to an agreement to change the will (eg for tax reasons) between themselves. As long as all the beneficiaries agree, it’s possible to enter into a Deed of Variation which allows for an executor to administer the estate in the new terms agreed under the deed.
If there is no agreement between everyone, and a summons for inventory and account isn’t appropriate, an executor (or a beneficiary) may sometimes need to apply to Court to seek advice on how best to proceed; an application can be made under Part 64 of the Civil Procedure Rules. This is not generally seen as hostile litigation, and so is less risky from a costs point of view than other forms of litigation (eg applying to remove an executor – see below). But this is by no means a given and if the proceedings are unreasonably brought or defended, it is always open to the judge to make a different order on costs.
Can a beneficiary remove an executor?
I’m often asked this. A will appoints an executor and the deceased’s express wish in this respect is taken very seriously by the court. In some situations, the beneficiaries may not want that person to deal with the estate. In others, it may simply not be practical for that person to do the job.
An executor is able to “renounce” (stand down), as long as they have not ‘intermeddled’ in the estate (i.e. they haven’t carried out any of their jobs as an executor).
If there is more than one person named as an executor, they may have ‘power reserved’ to them, so that they effectively take a step back and allow the other executor to deal with the administration, whilst not giving up any of their powers as an executor.
In some circumstances, an executor may refuse to renounce (or may have already dealt with the estate and so cannot renounce) but may still refuse to co-operate. In these circumstances, an application to Court may be necessary to force the removal of an executor and appoint an alternative executor. This action should only be taken as a last resort; not just because the parties do not get on. It is a highly hostile application and an unsuccessful beneficiary may have to face a very large legal bill.
Beneficiaries do have rights and must be treated fairly and openly by executors. When that doesn’t happen, it’s always sensible to try to resolve matters out of court if at all possible. But if that doesn’t work – there are a number of options to hold an executor to account.