The person looking after a deceased person’s estate, called an executor or administrator, must comply with certain duties following the death of the person who made the will. Any breach of these duties can give rise to various legal routes that can be taken by either a co-executor or beneficiary who is entitled to inherit under the will. It is important that executors and beneficiaries are aware of the existence of such duties and the potential legal routes they can take in the event of a breach.
What is an executor?
An executor is a person who is named in a will whose responsibility it is to manage and distribute the deceased’s persons estate.
Who can be an executor?
An executor can be anyone, it doesn’t have to be a relative of the deceased person. It could be a friend or a professional person like a solicitor or accountant.
What are the duties of an executor?
There are various duties which an executor must comply with. Primarily, executors must ensure that they act in the best interests of the estate and its beneficiaries. Executors’ duties include the following:
- A duty to collect and gather in the estate of the deceased and administer it according to law.
- A duty to provide a full inventory and account of the estate when required to do so by the court and/or the beneficiaries of the estate.
- A duty to deliver up the grant of probate or administration to that court when required.
- A duty not to place themselves in a position where their own interests conflict with those of the estate or beneficiaries, or where there is a real possibility that this will happen.
- A duty not to profit from their position at the expense of the estate or the beneficiaries.
In situations where there are multiple executors, all executors must make decisions in relation to the administration of the estate unanimously. It is therefore important that all executors are involved in any decision making and steps taken to administer and distribute the estate. If there is more than one executor, and they can’t agree as to what to do, they can’t do anything until this disagreement is resolved between them or by a court.
What can I do if I think an executor has breached their duties?
This is very much dependent upon the duty that has been breached. Generally, where an executor is holding up the administration of the estate, there is an option to have them removed from their role as executor. You can either do this by agreement or by an application to the court.
It is also possible to apply to the court for directions in relation to how the estate should be dealt with. This may be appropriate in situations where an executor is in breach of their duties but the co-executors and/or beneficiaries require guidance from the court as to how this should be dealt with.
It is always important to first consider whether an executor’s breach of duties can be dealt with outside of court proceedings. Attempts should always be made to resolve the matter by agreement before making an application to the court, as court proceedings can be lengthy and costly. Unfortunately, this is not always possible.
The responsibility on an executor to deal properly with an estate is a serious one. If one executor is at fault for any delay or failure to deal with the estate properly, they could end up being personally liable for any losses or legal costs incurred in putting things right.
What if I need further advice?
We have an experienced team of solicitors who will be able to assist you with any queries you might have in relation to an executor’s breach of duties.
If you would like to make an enquiry, please telephone 0208 232 9560 and we will be happy to help.