What To Do If A Personal Representative Is Not Fulfilling Their Duty?

Do you know a personal representative not fulfilling their duty? Well, legislation allows the removal of a personal representative before and/or after a Grant of Probate or Letters of Administration has been issued. Over the course of this article the use of ‘Grant of Probate’ also includes ‘Letters of Administration’.

What is a personal representative?

A personal representative, more commonly referred to as an executor, is the person(s) who is legally entitled to administer the deceased’s estate. They are personally liable to the beneficiaries or creditors for any loss resulting from a breach of his or her duty (known as a ‘devastavit’).

Legal guidance allows for no more than four personal representatives. If the deceased died leaving a valid will then the named executor(s) are appointed to administer the estate. If there is no valid will then the order of priority under the rules of intestacy is followed, starting with the deceased’s spouse, then issue (children).

What are a personal representative’s legal obligations?

Under Section 1 of the Trustee Act 2000, a personal representative has a statutory duty to “exercise such care and skill as is reasonable in the circumstances” when carrying out their role in administering the estate.

If a personal representative is found to have breached their duty, a beneficiary can apply to have them removed.

What is the legal authority to remove a personal representative?

Before a Grant of Probate is issued, Section 116 of the Senior Courts Act 1981 allows an “application to pass over” removing a personal representative, and is made ‘ex parte’ to the district judge or registrar. This kind of application requires evidence supporting the appointment of a new personal representative by way of an affidavit setting out the grounds.

However, if a Grant of Probate has already been issued then a claim under Section 50 of the Administration of Justice Act 1985 can be exercised against the personal representative. This claim is brought to the Chancery Division of the High Court. Claims under Section 50 are governed by the Civil Procedure Rules 57 and must involve ALL personal representatives.

A claim can be brought against a personal representative up to 12 years after costs and testamentary expenses are paid from the estate. This is set out in case law; Re Loftus (deceased) [2006]. It is used when there is an alleged failure to administer the estate or alleged maladministration.

The court’s primary concern is the welfare of the beneficiaries.

The courts will generally remove an personal representative if:

–        they show signs of incapability;

–        they are unsuitable for the role; or

–        there are signs of friction or hostility.

Before filing for an application to remove a personal representative, it is important to seek legal advice, not least because of the cost implications if the application is unsuccessful.

The process of administering your loved one’s estate can not only be difficult but also time consuming.  Make sure you’re fulfilling your duties and instruct a solicitor to provide you with the correct guidance.