When someone dies leaving a Will, this should name one or more individuals as their executor. An executor is the person who will be responsible for winding up the estate. It can be an onerous task and it is sometimes the case that an executor does not want to take it on. We look at what happens in this situation or if someone takes on the role but fails to progress the administration.
Declining to act as an executor is known as renouncing probate. There are strict rules relating to renouncing and if you do not want to be an executor, it is essential not to breach these.
Summary
- Duties of an Executor
- What Happens if the Executor Does Nothing?
- What Happens if an Executor Has Applied for Probate But is not Acting?
- Challenging an Executor
- Contact Our Contentious Probate Solicitors
- FAQ
Duties of an Executor
A Will executor is responsible for finalising the deceased’s affairs. This includes:
- Valuing the estate, to include property, cars, furniture, jewellery and debts
- Calculating the net value of the estate and how much, if any, Inheritance Tax is payable
- Filling in HM Revenue & Customs forms and paying Inheritance Tax
- Applying to the Probate Registry for a Grant of Probate
- Collecting, selling and liquidating the deceased’s assets
- Clearing all of the deceased’s liabilities, including mortgages, credit card debts and tax liabilities
- Where necessary, placing statutory advertisements in the Gazette and local newspapers for unknown creditors and beneficiaries to come forward
- Preparing detailed estate accounts
- Providing copies of the estate accounts to residuary beneficiaries
- Distributing the estate
Executors are generally expected to wind up an estate within a year where possible. However, the process can sometimes take longer, particularly if there is a property to clear and sell or the estate is complex.
It is good practice for executors to provide some updates to beneficiaries so that they are aware of the progress that is being made. Executors can also respond to reasonable requests for information from beneficiaries, although they are not obligated to disclose all details.
What Happens if the Executor Does Nothing?
If an executor fails to deal with the estate administration process or makes mistakes and these failures cause a loss to the estate, they can be held personally liable. In the worst cases, an executor could face imprisonment for ignoring a court order requiring them to fulfil their duties to the estate.
If an executor does nothing at all in respect of the estate administration, then they have the option to renounce probate. This will allow someone else to take on the role.
However, if they have carried out some duties already, this is known as ‘intermeddling’ and once this has happened, they cannot renounce.
An application can be made to the courts to have someone else appointed as an executor if the named executor repeatedly fails to take any action. The first step is to make a request to the courts or Probate Registry for a citation.
What is a Citation?
A citation is a notice issued by a judge or probate registrar requiring an executor to enter an appearance by responding to the Probate Registry or by taking specified steps in the administration process.
Where this is not done or the executor still fails to apply for a Grant of Probate, the person who asked the court for a citation can request that someone else is appointed as the estate’s executor.
What Happens if an Executor Has Applied for Probate But is not Acting?
If an executor fails to administer an estate, then steps can be taken to persuade them to do so or to have them replaced.
The first step is usually to speak to an experienced contentious probate solicitor who will be able to write a formal letter to the executor explaining their obligations and prompting them to take action. Often this is enough to move matters along.
It is important not to let a situation become dormant, however, as an executor could face personal liability to the estate and its beneficiaries if assets are reduced in value or other losses occur.
Challenging an Executor
If you want to challenge an executor because of a lack of action or poor administration of an estate, you are advised to seek legal advice if you are not able to talk matters through with the executor and find a solution. This is a complex area of law and it is essential to follow the correct procedure in challenging an executor.
For information on our services, see our Wills Dispute Solicitors page.
Contact Our Contentious Probate Solicitors
If you are an executor and do not want to act, contact us today and we will be happy to advise you.
If you are a beneficiary and you have concerns over the way in which an estate administration process is being handled, we can discuss the options open to you.
To speak to one of our expert contentious probate solicitors, ring us on 0330 173 3980, email us at info@witansolicitors.co.uk or fill in our contact form and we will talk through your situation with you and discuss how we can help.
FAQ
I don’t want to be an executor, what do I do?
If you do not want to take on the role of executor, for example, because you do not have the time or you do not feel you have the expertise, you can ask a probate solicitor to deal with the estate administration on your behalf.
If you would like us to act for you, we can carry out the whole process, from calculating Inheritance Tax and applying for a Grant of Probate to preparing estate accounts and distributing the estate. You would still have the title of executor, but would not need to deal with the day-to-day administration process. The costs of estate administration are paid by the estate.
Another option is to renounce probate. This would allow someone else to take over the role of executor. Again, they could choose whether to wind up the estate themselves or engage a probate solicitor.
If you want to renounce probate, it is essential not to take any steps at all in dealing with the estate. Once you have carried out some administrative duties, it is no longer possible to renounce.
If the Will names more than one executor, then it is open to you to have ‘power reserved’. This means that you will still be an executor, but you will not take any active role in the estate administration. If circumstances changed, you could reverse the decision to reserve powers and assist with the administration.
What do you do if an executor is not dealing with an estate administration?
If an executor is not dealing with an administration, the first step is to try and talk to them about the situation. It may be that they have carried out some work that you are not aware of and are waiting for other parties to respond, for example, they are waiting for the Probate Registry to issue the Grant of Probate or for a property to be sold.
Where there is a problem and no action is being taken, you can ask a probate solicitor to intervene. They will be able to write to the executor explaining that the process needs to be dealt with or steps will be taken to have them removed.
What happens if an executor does not pay a beneficiary?
An executor cannot withhold money from a beneficiary without good reason. An executor may need to wait six months from the date of the Grant of Probate to see whether any Inheritance Act claims are made against the estate. If there is no good reason for the delay, then a solicitor will be able to write to the executor, reminding them of their duty to act in the best interests of the beneficiaries.
Interest is generally payable on cash gifts that have not been distributed one year after the date of death.
If the executor continues to withhold payment, then your solicitor will be able to advise you of the pre-action protocol to be followed before asking the court to make an order.
