The executor appointed by the Will, has to take on a large responsibility in managing the deceased’s affairs. The executor has to take care of valuation, taxes, outstanding loans and distributing the estate to the beneficiaries. They will also be required to apply for a Grant of Probate in order to have the legal authority to manage the estate in Scotland.
Understandably, this can put a lot of pressure on an individual. Sometimes the executor may not be suitable for carrying out their duties effectively or downright refuse to obtain a Grant of Probate.
What can be done if the executor refuses to apply for Grant of Probate?
Frequently, when a person dies, their beneficiaries may want to deal with the matters of inheritance and estate quickly after their death.
If, for whatever reason the executor refuses to obtain a Grant of Probate, the spouse/next of kin may notify the executor in writing, that they are applying to the court to transfer the responsibility of the executor to a different person.
In the case where the executor holds the original copy of the Will, a subpoena may be issued by the court for the executor to relinquish it within eight days. If however, the executor does not give it up by the specified deadline, the beneficiaries can lodge a citation against that person which mandates them to either accept or refuse the Grant of Probate.
If the executor fails or refuses to accept, the citation can in effect allow the court to transfer the Grant of Probate from the executor to the next of kin, giving them the power to administer the estate instead.
There is an exception however, if the executor has already interfered in the matters of the deceased’s estate, then the citation cannot be served. The reason being, that if the executor has in some way become directly involved in the deceased’s affairs, they are not allowed to suddenly drop their role or refuse the Grant of Probate.
If the executor fails to apply for the Grant, the beneficiaries can apply for a court order to force them to take the Grant of Probate or alternatively to direct the Grant to themselves (as the next of kin) or to a specified person of their choosing.
Once the court order is obtained, then the next of kin may apply for Grant of Probate.
What if the executor is not adequately carrying out their responsibilities?
The next of kin should be able to request a detailed written account of the administration of the estate from the executor.
If the account or explanation is not satisfactory, the next of kin reserve the right to apply to court for a substitute or removal of the executor. This could raise some difficulties however, as sufficient proof of misconduct on the part of the executor would be required.
Normally, the court would only remove the executor in the cases of following transgressions:
If the executor has become legally ineligible to perform their duties since the appointment by the Will. (e.g. if they were convicted of a crime and are in prison)
If they are physically or mentally incapable (albeit temporarily or permanently) to effectively perform their duties.
If the party is not suitable for the role due to either a conflict of interest or a serious breach of conduct. The misconduct would have to be grievous enough to seriously affect the estate. (e.g. mismanagement of the estate, stealing from the estate, negligent keeping of the accounts or not obeying a court order).
If there is not enough proof, or if the degree of misconduct is not deemed serious enough by the court (e.g. the executor being rude to the beneficiaries), it would be very difficult to remove an executor.
Removing or substituting the executor via court order
An application for a court order to remove an executor can be made by the beneficiaries through the Part 8 Claim of the Civil Procedures Rules 57.13.
The application will need to be supported by the following documents:
A certified, sealed copy of the Grant of Probate (or Letters of Administration in England)
A Witness Statement detailing the reasons for removing the executor, as well as the deceased’s assets and liabilities, names of the beneficiaries and the proposed substitute for the executor
A signed Consent To Act by the substitute
A Witness Statement to prove the substitute’s qualification for the role
The above applies only if the inheritance proceedings have not started yet, otherwise the application to remove the executor would have to be done via an application notice, not Part 8 Claim.