“I am a beneficiary of my brother’s estate but I don’t believe the executor is performing their duties and has refused to apply for the grant, what are my options?”

Each week we are taking questions from our clients and contacts.  This week Mr. Riley from Barnsley asked the above.

The executor’s duties to beneficiaries is a subject that we get asked about quite a lot. Therefore the team here at Best Solicitor’s have looked to share some insight around this topic for you in our latest article:

Thomas Tilbrook, the Head of our Civil Litigation, Dispute Resolution Department answers

“I am sorry to hear of your brother’s passing and the difficulties you are now encountering in relation to the executor of the estate.

If an executor is refusing to act or apply for the Grant then a beneficiary or next of kin are able to give notice to the current executor that they are intending to apply to the court for someone else to administer the estate.  This must be done in writing.

In all likelihood, the executor will be in possession of the original Will.  To be in a position to make an application to the court for a grant of probate you will require the original Will.  If the executor will not release this to you and is not applying for the grant, then you can make an application to the court for a subpoena to be served on them informing them that they must do this within 8 days.  The next step would then be to apply to the court for a citation that forces the executor to accept or refuse the grant.

The citation allows the court to direct that the next of kin be granted the grant of probate.  This would then allow you to administer and distribute the estate as per the will.

In some circumstances, if an executor has interfered with the estate then a citation cannot be served.  This is because an executor who has been involved in the estate cannot renounce their role or refuse to take the grant.

There can be many reasons as to why an executor has not or cannot act such as:

Disqualification – If the executor has been convicted of a crime and is sent to jail then they can be disqualified as acting as an executor.

Incapability – if the executor has a physical or mental disability that is preventing them from performing their duties

Unsuitability – if there is a conflict of interest or serious misconduct the executor may be deemed unsuitable.  However, the misconduct would have to be so serious that it would be detrimental to the estate, for example stealing from the estate, mismanagement etc. Unfortunately, it can be quite difficult to prove that an executor is unsuitable.

This can be quite a complex matter and we would suggest that you seek advice before making any applications to the court”

If you’re a beneficiary of a family member’s estate and unsure of the executor’s duties to beneficiaries, you can contact our team to find out more – either by calling us on 0114 3583134 or by getting in touch with us via our contact page.