What can you do if the executor of the estate is unsuitable for the task at hand?
There are remedies available to beneficiaries who fear that the estate be administered properly by the executors. This might be because executor has a conflict of interest in the estate, or else the executors have fallen out with each other or with the beneficiaries of the estate. It might be because an executor lacks the aptitude to carry out his function, or may be physically unable to do so due to health, absence or imprisonment.
The remedy is to take formal steps to have the court replace the unsuitable executor.
The precise step to take depends upon whether or not a Grant of probate has already been obtained.
Before a Grant
If steps are taken before a Grant is obtained, it is known as “passing over” the executor. Effectively, alternative executor is appointed before the original one, even takes on his powers.
The court will agree to this if it considers it necessary or expedient to appoint some other person to administer the estate. There must be a good reason to pass so the executor.
When assessing whether or not to take this step, it should also be remembered that alternative results might be achieved by issuing a Citation instead. The citation may achieve a result more quickly and for less legal cost. However, citation approach also comes with its own risks. The issuing a citation may not result in the removal executor, and there is a risk that all the citation will achieve is a circumstance whereby an unsuitable executor is compelled to act.
After a Grant
If a Grant of probate has already been obtained, then a different application must be made because the court will be required to exercise a different power. Instead of passing over an executor (i.e. replacing him before he has even begun to act) , the court will remove or replace an acting executor with another person. If there is only one executor, or alternatively, if there are multiple executors, but all of them are to be removed, then the court will replace executors. If there are multiple executors, but not all of them deemed suitable, the court will only replace those that are unsuitable with alternative executors.
In taking such action, the court will be concerned with the welfare of the beneficiaries and the proper administration of the estate. Therefore court will not act for trivial reasons.
