Can I ask a professional executor to step down?


04 October 2021

It is not uncommon for testators to appoint a professional executor to administer their estate in their Will, usually in the hope that this will prevent disputes and ensure that the administration proceeds smoothly.

However, concerns from beneficiaries and/or co-executors often arise as to whether a professional executor’s fees are proportionate, especially if the estate is particularly modest in size.

Even where such concerns arise, the starting point is that the professional executor is entitled to administer the estate, provided, of course, that the Will is valid. That being said, the recent case of Richman v WAG Davidson and Co Solicitors [2020] EWHC 3794 (Ch) illustrates that it is not impossible for a professional executor to be removed in certain situations.

This case involved a beneficiary, the daughter of the deceased, who wanted the professional executors to be removed so that she could administer the estate herself. The deceased’s last will left her property to her grandson but otherwise her daughter received the entire estate. The net estate was valued at around £832,000 and was not particularly complex. The professional executors strongly resisted the daughter’s claim for their removal even going so far as accusing her of fraud. However, the court found that the professional executors had acted wholly disproportionately and ordered their removal. The professional executors were also ordered to pay £25,000 towards the daughter’s legal fees.

So, how should you approach a case where you wish to remove a professional executor and administer the estate yourself?

The starting point

You should start by considering whether the professional executor ceasing to act would be in the best interests of the estate.

If the estate is modest in size, and consists of relatively uncomplicated assets, such as a solely owned property and money in bank accounts, then a layperson may well be capable of administering the estate without a professional executor. This would have the benefit of preserving estate funds, as a lay administrator cannot charge the estate for their services.

However, if the estate is complex, of high value, or there are potential familial disputes that could arise, it will usually be best to involve a professional executor. This is of particular importance, as, if you are acting as an administrator you have certain duties to fulfil, one of which is remaining neutral in relation to any disputes; this may prove difficult if all the parties involved are members of the same family.

You will also need to familiarise yourself with an administrator’s duties as if you take on the role you will have to adhere to them or risk being held personally liable for any loss caused to the estate.

Make a request

The first step should be asking the professional executor to step down voluntarily, presenting them with the reasons why you believe that this would be in the estate’s best interests. It is important to note that a professional executor is not obliged to renounce their role if requested; however, should a claim be made for their removal at a later date, it will improve their position if they have considered the request very carefully and thought about what is in the best interests of the estate at the time the request is made.

If, after due consideration, the professional executor chooses to continue to act, they should set out their justification for doing so. It is not sufficient for a professional executor to simply rely on the mere fact that the deceased appointed them; their decision to act must be based on the current best interests of the estate.

The professional executor has refused to step down. What next?

If you are not satisfied with the professional executor’s reasons for continuing to act, then it would be advisable to obtain a copy of the deceased’s Will file. This should include various attendance notes and correspondence between the deceased and the solicitor who prepared their Will, including discussions surrounding the appointment of the professional executor. This should highlight whether the deceased was properly informed at the time of writing their Will.

It is not unusual for the Will writer to be named as an executor, and it may be perfectly reasonable for them to act. However, if this is the case, it is crucial that the professional executor was acting in the testator’s best interests at the time of drafting, and made them aware of the costs that would be involved should they be appointed. Under the SRA's Transparency Rules 2018, an authorised firm (or an individual providing services to the public outside an authorised firm) must provide information about the costs of their probate and administration services on their website, so that the testator could be directed to the information to help them make their decision.

A professional executor must not exploit a client's lack of knowledge by leading them to believe that their appointment is essential, and they should only encourage their appointment if it is in the client’s best interests to do so. If the testator was advised correctly, this information should be easily identifiable in the deceased’s Will file.

Removing a professional executor

If, after your investigations you still believe it is in the best interests of the estate for the professional executor to step down, yet they continue to refuse, you can make an application to court to have them removed. This should be approached with caution and used as a last step, as invoking court proceedings will always carry a costs risk.

Conclusion

Each case will turn on its own facts so if you are either a beneficiary wanting to remove a professional executor, or a professional executor faced with a request to step down, it is important to seek legal advice as soon as possible to ensure that you understand your options and the best course of action available to you.

Our specialist Contentious Trusts and Probate Team at Birketts are well equipped to advise both beneficiaries and professional executors, so please do get in touch should you have any queries.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.

Authors

Kate Harris

Senior Associate

+44 (0)1223 643106

+44 (0)7971 577066

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