In cases of serious executor misconduct the executor may find themselves removed from office, being ordered to repay money to the estate, becoming personally liable for legal costs, or even, facing a prison sentence. Contentious probate partner Naomi Ireson explains.
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What are an executor’s duties?
Executors have a legal obligation to administer an estate diligently, fairly and with integrity, in accordance with the terms of the Will under which they are appointed.
When carrying out this role executors should always act in the best interests of the estate and must not let their personal wishes override their duties. Above all, financial integrity is paramount. Executors must not benefit financially from their position. The only exception is where they have been appointed in a professional capacity and the Will permits them to charge for their professional services.
Executors are expected to keep clear and accurate financial records and be willing to be open and transparent, making that information freely available to those with a genuine interest in the estate.
While most executors behave impeccably and do an excellent job, there is a small minority who fail to meet the standards expected of them. Sometimes this is simply due to incompetence. In other instances, the actions of the executor may be intentional and calculated
It is important for executors to appreciate that their conduct will be scrutinised, and they may ultimately be required to account for their actions to a court.
What can be done about executor misconduct?
The law is required to uphold the very highest standards. Executors who fall short in performing their duties may be removed from office, ordered to repay monies to the estate, and be held personally liable for legal cost. In the most serious cases, they could find themselves committed to prison — which is what happened to the executor in the case of Totton -v- Totton. In that instance the executor failed to provide financial information to solicitors who were representing parties making a claim against the estate. The judge considered that the executor’s misconduct was so serious that it merited an immediate 4-month custodial sentence for contempt of court. Fortunately for the executor, the judge gave him one final chance to comply with his legal obligations by passing a suspended sentence.
How we can help with executor misconduct
Most cases of executor misconduct do not get as far as it did in Totton. Our team of contentious probate lawyers deal with executor disputes on a daily basis and are skilled at resolving disputes without formally involving the courts. Even the most recalcitrant executor is likely to heed the warnings of our specialist solicitors and opt to comply with our requests, rather than face the financial risks (or worse) of court action.
However, where an executor refuses to honour their legal duties, we are experienced in bringing cases to court and seeking the removal of rogue executors from office along financial sanctions.
Read our case study about an unresponsive executor who was forced to sell up and pay our client what was owed, having refused to account to him for 15 years.
