The role of an Executor & Trustee

Probate

Following a person’s death, where there is a Will, the Executor is the person responsible for administering the estate of the Deceased in accordance with their wishes. The role is often one that is quite a difficult task, more so where there is conflict between family members of the deceased however, the Executors exercise a great deal of control and power over the Estate and must always act with integrity in fulfilling their fiduciary duties.

What are the duties of the Executor? There are various key duties, in addition to general legal responsibilities, owed by the Executor to the Beneficiaries of the Will, including:

1- Administering the Estate with due diligence
2- Ensuring they are acting in accordance with the terms of the Will
3- Ensuring the beneficiaries’ interests are prioritised over their own interests as executor – acting impartially
4- Taking all precautions to ensure the Estate assets are protected and eventually sold at an appropriate value.
5- Ensuring all beneficiaries of the Will are treated equally and not showing any bias towards some over others.

How can an Executor not comply with their duties correctly?

Occasionally, the Executor may fail to pay heed to their duties and administers the Estate in an inappropriate manner. This may be as a result of deliberate acts of fraud by the Executor, or by negligence.

Fraud

Fraudulent acts by the Executor may occur where there is a conflict of interest between the Executor’s duty to act in the best interests of the estate, and their own interests as a beneficiary under the Will. In such situation, the Executor may deliberately fail to declare all the assets of the Estate, under value them, utilise some of the Estate assets for themselves or transferring the assets such as property, jewellery, cash or other valuables to themselves or other parties, rather than the rightful beneficiary.

Withdrawing Money from the Deseased Bank Account

It is also common for the Executor to continue withdrawing money from the Deceased’s bank account after their death, particularly where they were assisting the Deceased with their finances during their lifetime and retain access to their banking details. The Executor may also incorrectly be under the impression they deserve these items, were promised such assets by the Deceased during their lifetime, or even consider this as an advance payment of what they are due from the Estate as a beneficiary. Unfortunately for the Executor, they are acting in breach of their duties as the Deceased’s Estate has not been formally accounted for at this stage.
Where the Executor is negligent, their errors in administering the estate may have arisen if there is a lack of information regarding what the estate assets are (particularly if the Deceased did not make this clear in the Wil) or details of the beneficiaries, causing difficulties upon distribution of the estate as the assets may incorrectly be distributed to a beneficiary who is not entitled to them under the terms of the Will.

Selling Property

The Executor may also fail to appropriately invest or sell the assets of the estate at the correct market value, causing a loss to the beneficiaries.
The Executor may not act within appropriate time frames, resulting in an unreasonable delay in administering the estate. There is also a chance that the inheritance tax owed is calculated incorrectly causing penalties to be applied to the estate, or not paying inheritance tax within the correct timeframe to HMRC. These breaches of trust are more likely to occur where the Executor is not a professional and therefore unaware of the legal requirements upon them during administration of the estate. Due to their lack of knowledge, significant breaches of duty may occur in administering the estate.

Whilst these are a few examples of potential breaches of duty by an Executor, there are a great number of other ways in which the Executor may act, causing a negative impact on the Deceased’s estate and beneficiaries. It can be difficult to prove what was part of the Deceased’s Estate and beneficiaries may not realise what has happened to the assets they were entitled to or even realise that a breach has occurred.

What can I do if there has been a Breach of the Executor’s duties?

One of the initial steps a Beneficiary or Co-Executors (if any have been appointed) can take, where they suspect there is a breach, is to request a written account of the administration of the estate. If it is apparent that the Executor’s actions have caused a loss to the Estate, then they can be under an obligation to remedy this personally.

The Beneficiary may consider making an application to the Court, under Section 50 of the Administration of Justice Act 1985, requesting to remove or substitute the Executor, if the Executor continues their behaviour or does not comply with requests for information or remedying the breach.

The Court would remove the Executor from their role in instances of:

1. A criminal conviction
2. Their incapability to act, either due to physical or mental reasons, which has led to the Executor being prevented from performing their duties
3. A significant conflict of interest
4. serious misconduct such as failing to administer the estate correctly within reasonably time limits or misuse of Estate assets.

An application can be made to the Court compelling the Executor to act or not act in a particular manner, or even to carry out a specific action. The Court will pay consideration to the actions of the Executor and how far these fall from the terms of the Deceased’s Will and the Executor’s duties before determining whether the Application made is appropriate.

How can we help?

It is often a very difficult decision to take action against an Executor who has breached their duty, as you may feel in doing so, you are going against the decisions of the Deceased made during their lifetime. It is important however to remember that the Executor must comply with their duties and administer the estate in a manner that is fair and with integrity; and should be held accountable where this is not the case. Another point to note is that administering an estate takes a lot of time, and it is not uncommon, especially when there is property to be sold, for the estate administration to take 12 – 18 months to conclusion.

If you suspect that an Executor is acting in a manner that is not appropriate, please get in touch with one of our expert Solicitors and we shall be able to guide you. Please see our locations page or contact us to request a call back or arrange an appointment.

All information is correct on the date of posting.