Will executer bad behaviour - arbitration possible?
Discussion
Any legal bods on here know if there is a mechanism in place to assist when an executer (and beneficiary) of a will is failing to behave themselves?
Or is it just a question of attempting gentle diplomacy between the parties?
Is there a legal obligation to behave reasonably?
There must be rules - we all know what some people are like when there aren't any rules.
Or is it just a question of attempting gentle diplomacy between the parties?
Is there a legal obligation to behave reasonably?
There must be rules - we all know what some people are like when there aren't any rules.
It has to be a non detailed question, but let's say communication difficulties to start with.
There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
This may answer your question - http://www.lawpack.co.uk/probate/articles/article7...
Fortunately one of the beneficiaries (not me: I wasn't one and had no direct involvement) was able to prove the solicitor's actions (and lack of them!) had caused a serious diminution in asset value. The process was a proper ballache and took an inordinate amount of time and effort.
Linked article said:
What can a beneficiary do if the executor is not performing their duties correctly?
If a beneficiary is unsure of an executor’s actions, they can initially write to the executor asking them for an account of the administration of the estate.
If the beneficiary is still dissatisfied with the executor’s explanation, they can apply to the court to remove and substitute the executor.
However, this is not an easy thing to do, as the beneficiaries must prove to the court that the executor has seriously misbehaved. The courts, generally, will only remove an executor if they have done the following:
1. Disqualification
The executor has become disqualified since they were appointed by the deceased, i.e. they have been convicted of a crime and sent to jail.
2. Incapability
They are incapable of performing their executor duties. For example, if they have a physical or mental disability (albeit permanent or temporary), which is preventing them from performing their duties.
3. Unsuitability
They are unsuitable for the position due to either a conflict of interest or serious misconduct. The misconduct would have to be so serious that it affects badly the estate (e.g. stealing from the estate, not keeping proper accounting records, not obeying a court order, or mismanaging the estate).
Misconduct can be difficult to prove. If the beneficiaries feel that the executor has been rude to them or does not provide them with sufficient information, then this is not enough for a court to remove an executor.
How to remove or substitute an executor by court order
Beneficiaries can apply for a court order to remove an executor by making a Part 8 Claim, under the Civil Procedure Rules 57.13.
The following documentation must be provided to support the application:
A certified sealed copy of the Grant of Probate (or Letters of Administration).
A Witness Statement outlining why the executor should be removed, along with details of the deceased’s assets and liabilities, names of the beneficiaries and the proposed name of the substitute executor.
The proposed executor’s signed consent to act.
A Witness Statement of the proposed executor’s fitness to do the role.
If proceedings regarding an inheritance dispute have already started, then the application to remove an executor must be made by an application notice and not by a Part 8 claim.
It won't be easy. A relative of mine was foolish enough to appoint a solicitor as their sole executor. She was a bit 'old school' and did so in the belief she was helping her beneficiaries in appointing someone truly independent to administer her estate. It proved to be a disastrous mistake.If a beneficiary is unsure of an executor’s actions, they can initially write to the executor asking them for an account of the administration of the estate.
If the beneficiary is still dissatisfied with the executor’s explanation, they can apply to the court to remove and substitute the executor.
However, this is not an easy thing to do, as the beneficiaries must prove to the court that the executor has seriously misbehaved. The courts, generally, will only remove an executor if they have done the following:
1. Disqualification
The executor has become disqualified since they were appointed by the deceased, i.e. they have been convicted of a crime and sent to jail.
2. Incapability
They are incapable of performing their executor duties. For example, if they have a physical or mental disability (albeit permanent or temporary), which is preventing them from performing their duties.
3. Unsuitability
They are unsuitable for the position due to either a conflict of interest or serious misconduct. The misconduct would have to be so serious that it affects badly the estate (e.g. stealing from the estate, not keeping proper accounting records, not obeying a court order, or mismanaging the estate).
Misconduct can be difficult to prove. If the beneficiaries feel that the executor has been rude to them or does not provide them with sufficient information, then this is not enough for a court to remove an executor.
How to remove or substitute an executor by court order
Beneficiaries can apply for a court order to remove an executor by making a Part 8 Claim, under the Civil Procedure Rules 57.13.
The following documentation must be provided to support the application:
A certified sealed copy of the Grant of Probate (or Letters of Administration).
A Witness Statement outlining why the executor should be removed, along with details of the deceased’s assets and liabilities, names of the beneficiaries and the proposed name of the substitute executor.
The proposed executor’s signed consent to act.
A Witness Statement of the proposed executor’s fitness to do the role.
If proceedings regarding an inheritance dispute have already started, then the application to remove an executor must be made by an application notice and not by a Part 8 claim.
Fortunately one of the beneficiaries (not me: I wasn't one and had no direct involvement) was able to prove the solicitor's actions (and lack of them!) had caused a serious diminution in asset value. The process was a proper ballache and took an inordinate amount of time and effort.
Perhaps a recorded delivery letter telling the executor that a full and detailed record of any delays and communication issues are being kept and any further issues will be referred to the Probate Office as a complaint with a view to having them disqualified as executor. Unless this person s a professional executor or has a lot of experience it is doubtful they will understand how difficult it is to have them removed and I suspect that would make them extract their digit. If thus is a family member you may not want to cause bad feeling and perhaps the better way would be to offer to take on or assist with the burden thie disposal of the estate creates. If the person works they may be very busy and not have much time to devote to the work required.
rfisher said:
It has to be a non detailed question, but let's say communication difficulties to start with.
There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
Umm, they're the executor's sole legal responsibility. Sounds like you/the other beneficiary is wanting to get more involved than they have any right to be. By all means the executor could let them "help", but that can actually cause more delay and difficulty than saying "Butt out and wait. I'm on it.". Always assuming they are, of course.There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
^^This^^.
There is a common misconception about communication. Whilst this is often desirable, during the administration the beneficiaries do not have particularly strong rights to demand information or co-operation from executors. In some cases it is best to keep it to an absolute minimum as beneficiaries poking their oar in can make things unnecessarily difficult/complicated. Once the administration has been completed the executor(s) must distribute a copy of the estate accounts to all persons entitled to one.
An executor undertakes considerable legal and financial responsibilities. One of the main ones is to protect the assets of the estate and realise the maximum benefit if any of them have to be sold. What does the will say is to happen to the house? If it says that it has to be sold and the proceeds distributed (not at all unusual) the decision whether to rent the house while awaiting a buyer is one for the executor to make without interference by any of the beneficiaries.
In fact renting would entail considerable risk, not least because in practice it would preclude a sale within 6 months (AST). In the event of any difficulty with the tenant failing to quit at the end of the AST period the estate would have to bear the otherwise avoidable cost of eviction proceedings. No executor with all their marbles intact would want to take any chance of ending up in that position.
I am not a professional legal bod but I have had the dubious distinction of having been an executor four times (!) for estates within my extended family. It can be a thankless task. You can please some people, etc...
There is a common misconception about communication. Whilst this is often desirable, during the administration the beneficiaries do not have particularly strong rights to demand information or co-operation from executors. In some cases it is best to keep it to an absolute minimum as beneficiaries poking their oar in can make things unnecessarily difficult/complicated. Once the administration has been completed the executor(s) must distribute a copy of the estate accounts to all persons entitled to one.
An executor undertakes considerable legal and financial responsibilities. One of the main ones is to protect the assets of the estate and realise the maximum benefit if any of them have to be sold. What does the will say is to happen to the house? If it says that it has to be sold and the proceeds distributed (not at all unusual) the decision whether to rent the house while awaiting a buyer is one for the executor to make without interference by any of the beneficiaries.
In fact renting would entail considerable risk, not least because in practice it would preclude a sale within 6 months (AST). In the event of any difficulty with the tenant failing to quit at the end of the AST period the estate would have to bear the otherwise avoidable cost of eviction proceedings. No executor with all their marbles intact would want to take any chance of ending up in that position.
I am not a professional legal bod but I have had the dubious distinction of having been an executor four times (!) for estates within my extended family. It can be a thankless task. You can please some people, etc...
rfisher said:
It has to be a non detailed question, but let's say communication difficulties to start with.
There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
When you say discussed and agreed - the executor can, to all intents and purposes, simply say "On X date the following will happen"... It is their duty to undertake the will in accordance with the wishes of the deceased, NOT satisfy all the beneficiaries nor give them a running commentary.There are many issues that need to be discussed and agreed (eg. sale or rent of the house, how and when to clear contents, how to divide up contents that will be kept etc.). All of these stages are likely to be delayed due to these difficulties.
They must also act to protect the value of the estate.
You say for example "sale or rent" of the house - however, what does the will say? It is assumed it would be rather more specific than that.
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