When someone passes away, their estate is usually administered by a personal representative. This can be a named executor in a Will, or an administrator appointed by the court. Most personal representatives carry out their duties responsibly, but what happens when they don't?
Signs it's time for Action
Not every disagreement with a personal representative is grounds for removal, but there are some red flags that may justify their removal. These include, but are not limited to:
- Excessive delays in applying for probate or distributing assets
- Refusal to communicate with beneficiaries or provide estate accounts
- Mismanagement of funds or failing to safeguard assets
- Conflicts of interest – putting their interest ahead of other beneficiaries
- Being unavailable due to illness or other reasons.
What can you do?
There are different methods to remove a personal representative dependent on the circumstances. You can apply to the court to remove and replace the personal representative under section 50 of the Administration of Justice Act 1985 or under s.116 of the Senior Courts Act 1981.
In order to do so, the Part 8 procedure should usually be used (although sometimes the part 7 procedure may be required). The Part 8 procedure includes a Part 8 Claim form and a witness statement evidencing your position. Any application should highlight why it would be in the best interest of the Estate and all beneficiaries to remove and replace the Personal Representative.
What will the Court consider?
The court will not exercise their power lightly. They will consider doing so if the representative's continued involvement would be detrimental to the proper administration of the estate. If a beneficiary can show that there has been misconduct or unreasonable delay or that the existing hostility will make it impossible for the estate to be properly administered, they are likely to succeed.
What should you consider before making an application?
- More than a mere disagreement – Is it in the best interests of all beneficiaries to remove the Personal Representative?
- Costs – the general rule is that the losing party pays the winning party's costs. If you lose, you may be liable to pay the Personal Representative's costs and your own. Careful consideration is required to understand the costs implications of making an application.
- Obtain Legal advice – The removal of a Personal Representative is complex, and it is recommended that parties seek legal advice at the earliest opportunity. If you are considering making an application, or if you are a Personal Representative facing a potential removal, please do not hesitate to contact one of our specialists who will be happy to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
