Removing an Executor or Trustee: Your Legal Rights Explained

Welcome to Legal Clarity, the podcast brought to you by Hatch Brenner Solicitors. Join us as we explore Legal Insight’s real case studies and personal stories that aim to both inform and empower. In this episode, Dispute Resolution solicitor Janet Lane tackles the challenging question can you remove an executor or trustee? She’ll explain what the role of an executor or trustee actually involves, whether they can be removed for misconduct, delays or failing in their duties. What options you have if an executor isn’t acting in the best interests of the estate, and how the court process for removal works in practice. If you’re dealing with estate administration issues or feeling unsure about your rights, this episode is here to guide you with clear, expert advice

Removing an executor or trustee. Is it possible?

Janet: It is. I think first of all, we need to look at the roles of executor and trustee. The title’s quite often are interchangeable, and it’s not uncommon for the same person to be appointed as an executor, as a trustee. And but I think we need to be clear that there are specific duties and responsibilities that are different. So if the deceased left a will, they will normally appoint an executor. The executor is responsible for administering the estate in accordance with the term of the will. So their duties are essentially to register the death and arrange the funeral organising, I’m sorry, notifying organisations about the death, collecting their assets, etc. and then finally distributing the estate and trustees as they are different, they they are trustees of a trust. Executors and trustees can both be appointed in one will and the trust will relate to a trust in the will. So trusts and different types of trusts that can be included in a will in they each work differently. And the most familiar ones that most people will know is about a trust for a minor beneficiary, so a child will receive money under a will when they reach 18 or 21. And there are property trusts so that if a property is held jointly, the remaining trustee will get to live in the property in the deceased’s share. So if there’s a life interest, they won’t have to sell the property and won’t have to move out. And so trustees duties are similar but different. So it’s finding out what assets are in the trust and recover any monies owed to the trust, and reviewing investments and keeping records about how the trust is being managed.

Can you remove them for misconduct or delays?

Janet Simple answer is yes, but the same as when you challenge him. Well, we should try and do everything by agreement before resorting to the court, and these sort of proceedings can be time consuming and costly and not in the best interests of the estate. What we have to remember is that if we’re I’m making an application to remove an executor or a trustee. Then they are predominantly entitled to recover any of their legal costs from the estates if they successfully defeat, defeat that claim. So we need to be careful. We need to make sure that we are going to succeed at court. So firstly, you should try and deal with any concerns informally by making enquiries with them, usually in writing, to establish what they have and haven’t done and to set out those concerns. And if that doesn’t achieve any clarity on the position or ease anybody’s concerns, a more formal approach can be made in writing and requesting information on the progress of administration. And obtaining information about a trust can be more difficult because not all trusts are evident. If the within a will, then the terms will be set out in the will. But if they are a separate trust, there is Difficulty in being able to obtain information about the trust itself. If there’s a trust in the will, then once there’s been a grant of probate, we can obtain a copy of the will because it becomes a public document, and then we can see what’s in that trust. If it’s a separate trust within a will, not so easy.

What steps can you take if an executor is not acting properly?

Janet: Well, firstly, as I’ve mentioned previously, you try and establish what they’ve actually done. Sometimes it’s just a case of people not being kept informed of what’s going on. And you can ask formally for information and but essentially we you would be moving on to making a claim with the court for removal of the executor or a trustee. And we have to be mindful that executors appointed under a will can renounce before there’s a grant of probate. So it can just be a case of going to the executor and either offering for them to renounce or trying to work through what our concerns are and there can be. An executor can be removed in two ways, either under section 116 of the Senior Courts Act, where there isn’t a grant of probate, or section 50 of the Administration of Justice Act 1985. If there is a grant and trustees can be removed and or replaced, and any action is taken under the Trustee Act 1925, or the court can remove them under the its own inherent jurisdiction. And also when there’s if there’s any mental incapacity or any compelling reason why the trustees should retire and then they can be replaced. And that’s done under the Trust of Land and Appointment of Trustees Act 1996. And we also have to bear in mind that trustees can retire as their executors can renounce, trustees can retire if all of the beneficiaries consent to it, providing they’re over 18 And there’s no unborn potential beneficiaries. Or they can be removed under an express provision.

And can you tell us the court process for removal?

Janet: Court proceedings will be brought either through the county court or through the High Court, depending where the which is most appropriate. The as I mentioned, they can be removed in a different way. The proceedings have been brought in accordance with the civil Procedure rules and the Chancery guide. And the pre-action conduct protocols explain how we should act in particular types of claim. And the court, if we’re issuing proceedings, will expect the parties to have followed those steps. So there is a lot of pre-action work. So parties should always seek court proceedings as a last resort. And also bear in mind that the executors and trustees can be indemnified for litigation costs from the estate if they were properly incurred in all the circumstances. Instances, so it is a case of issuing the claim. Once the claim is with the court, then it will follow the appropriate procedures. And this will be each party will be dealing with the court paper. So the claim form. And then there’s a defense. And then there will be witness evidence. And it will be for the court to decide on all the evidence before it as to whether they are going to remove the trustees or not.

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