My Co-Executor Isn’t Cooperating – What Can I Do?
Posted on in Dispute Resolution
The administration of an estate can be a complex and time-consuming process, which in some cases may lead to tensions arising between executors. Personality differences, administrative delays, unilateral decision making or different interpretations of a loved one’s Will, are just some examples of pressures which can lead to an executor dispute.
Whilst many disagreements can be resolved without legal intervention, it is reassuring to know that there are legal remedies available where disputes result in delay, deadlock or an inability to progress the administration of a loved one’s estate.
What is the Role of an Executor?
An executor has legal responsibility for the administration of an estate when someone dies leaving a Will. It is not uncommon for a Will to appoint more than one person to be an executor, provided there are no more than four.
Executors owe legal duties to the estate and must ensure they carry out the wishes of the Deceased in accordance with the terms of the Will.
In practice, this means executors are generally responsible for:
- Identifying, collecting and valuing the deceased's assets.
- Paying any liabilities of the estate and liaising with creditors.
- Preparing estate accounts, including calculating and paying any Inheritance Tax.
- Applying for a Grant of Probate.
- Dealing with or facilitating any claims brought against the estate.
- Distributing the estate in accordance with the deceased's wishes.
When might a dispute arise between co-executors?
Where more than one executor is appointed, disagreements can arise regarding how the estate should be administered.
Although disputes can occur in a wide variety of circumstances, common examples include:
- Executors being unable to agree on the valuation of estate assets or property.
- A breakdown in the personal relationship between executors, leading to delays, deadlock, or a refusal to cooperate.
- Concerns that one executor is acting outside the scope of their authority, for example attempting to deal with or purchase estate property without first obtaining appropriate legal advice.
- Allegations that one executor is mismanaging estate assets or failing to comply with their legal obligations, such as unreasonably refusing to distribute funds to beneficiaries.
In most cases, such disputes and disagreements can be dealt with between the executors amicably. Indeed, it is an important aspect of the role for executors to work collaboratively and hold each other accountable throughout the administration process.
However, it is not always possible for such disputes to be resolved without legal intervention, and it is important that executors seek independent legal advice where appropriate.
How can Executor disputes be resolved?
The short answer is that it depends. The appropriate course of action will often depend on the stage of the estate administration, the nature of the dispute, whether the executors wish to continue acting, and the extent to which the parties are willing to engage in alternative dispute resolution ("ADR").
If disagreements arise before a Grant of Probate has been obtained, and crucially before an executor has ‘intermeddled’ in the estate, it is possible for that executor to formally renounce their position.
Alternatively, if a Grant has already been obtained, or no executor is willing to step down, then ADR methods can be considered. This commonly includes negotiation and/or mediation and can offer a cost-effective means of resolving disputes without resorting to Court. For more information, please see here.
If all else fails, and agreement cannot be reached, the court process is the final avenue to try and resolve matters.
Depending on the nature of the dispute between the parties, the Court has powers ranging from providing directions as to the appropriate action in the administration of the estate, to removing one or all of the executors from their role (Section 50 Administration of Justice Act 1985).
Importantly, the Court will not look to punish an executor but will look to achieve a resolution that is remedial and in the best interests of the beneficiaries.
In practice, this means the court will often prefer measures that restore transparency and enable administration to proceed, before (or instead of) the more draconian measures of removing or replacing executors. Of course, each case will be different and will turn on its own particular facts.
Conclusion
Disputes between co-executors can be stressful and, if left unresolved, may significantly delay the administration of an estate.
Obtaining legal advice at an early stage can often help clarify the parties' respective duties, identify practical solutions, and avoid the time and expense associated with contested proceedings. Where cooperation has broken down entirely, the Court has powers available to ensure that the administration of the estate can continue and that the interests of the beneficiaries are protected.
How can Tozers help?
If you are experiencing difficulties with a co-executor, or are concerned about the way in which an estate is being administered, our specialist Contentious Probate team, which is led by an Association of Contentious Trusts and Probate Specialists (ACTAPS) accredited lawyer, can advise you on the options available and help you take the appropriate steps to move matters forward.