Key contact: Janice Powell
When someone passes away or sets up a trust, the role of the executor or trustee is vital. They are responsible for administering the estate or trust in accordance with the law and the wishes of the deceased or settlor. But what happens if the person appointed is not fulfilling their duties properly, or their actions put the estate or trust at risk?
In such cases, beneficiaries or co-executors may consider seeking the removal of an executor or trustee.
When might removal be necessary?
Removal is not something the court takes lightly. Executors and trustees are given authority by the will, trust deed, or law, and courts are reluctant to interfere unless there are serious grounds. Common reasons include:
- Misconduct or mismanagement – for example, failing to keep proper accounts, misusing estate funds, or acting dishonestly.
- Conflict of interest – where the executor or trustee’s personal interests clash with their duties.
- Failure to administer the estate or trust – including unreasonable delays or refusing to act.
- Lack of capacity or inability to act – where illness, absence, or other circumstances make them unable to carry out their role.
- Breakdown in relations – in some cases, a complete loss of trust and confidence between executors and beneficiaries may justify removal.
How can an executor or trustee be removed?
The process depends on whether you are dealing with an executor (appointed under a will) or a trustee (appointed under a trust deed or by law).
1. Removal of executors
- Before a grant of probate is issued, a named executor can “renounce” their position voluntarily.
- If probate has already been granted, removal usually requires a court order. The court has power under section 50 of the Administration of Justice Act 1985 to substitute or remove executors.
2. Removal of trustees
- Trustees may be removed under the terms of the trust deed, if it provides a mechanism.
- Beneficiaries and co-trustees can sometimes remove a trustee by agreement.
- Where agreement is not possible, the court can act under section 41 of the Trustee Act 1925 to remove and replace a trustee.
What will the court consider?
The court’s overriding concern is the best interests of the beneficiaries and the proper administration of the estate or trust. It is not enough to show minor mistakes or disagreements – there must be evidence that the executor or trustee is unable or unwilling to carry out their duties properly.
Alternatives to court
Court proceedings can be costly and time-consuming. In many cases, issues can be resolved without going to court, for example through:
- Mediation or negotiation between the parties.
- Agreeing to the executor or trustee stepping down voluntarily.
- Seeking directions from the court on a specific issue rather than full removal.
How we can help
If you are concerned about the way an estate or trust is being managed, it is important to take legal advice early. At Acuity Law, we act for beneficiaries, executors, and trustees in disputes of this kind. We can:
- Assess whether there are grounds for removal.
- Advise on alternative solutions.
- Represent you in court proceedings if necessary.
If you need advice on removing an executor or trustee, please contact our contentious probate team today.
