Oran Hall | Getting rid of an executor
QUESTION: I would like to know if an executor can remove an executrix from a will.
FINANCIAL ADVISER: It is possible to remove a person as an executor or executrix (the female equivalent of an executor) of a will, but it would have to be done through the courts, and evidence would have to be produced to support the application.
Any interested party, such as a person standing to benefit from the will or a person having fiduciary responsibility (an executor, for example), may make the application. Executors may be removed even after the grant of probate.
Among the reasons such an application can be made are the executor not moving expeditiously, thus causing harm to the estate by the assets wasting, for example, the executor misusing the assets, or for not selling estate assets for reasonable prices.
An executor who has been removed can be replaced, which would be necessary if there is only one executor. Where there is more than one, it is possible for the remaining executor or executors to carry on.
Where the only executor has been removed, one or more beneficiaries can apply to be administrator of the estate. Such a person is not called an executor, as only the person named in the will can be so designated.
In a case in which the beneficiary is a minor, an adult would have to act on behalf of the minor beneficiary to have the executor removed.
It is also possible for a named executor to renounce the executorship. To do so, the executor would need to complete the Deed of Renunciation Form, and have it stamped at the Stamp Duty & Transfer Tax Section of Tax Administration Jamaica and recorded at the Island Record Office for it to have legal effect. Executors may renounce their position if they do not wish to administer the estate for whatever reason.
Testators need not be wedded to particular persons being executors of their estate; they are free to change the executor as they see fit while they are capable of making the decisions which will bear on how their estates will be managed after their death. It is better to make such a change than risk difficulties arising when the estate is being settled.
The role of executor is a very serious one, as the executor is entrusted with the responsibility of ensuring that the wishes of the testator as stated in the will are carried out satisfactorily.
The executor's role is a time-consuming and demanding one. Although it is in order for individuals, including spouses, other family members, and beneficiaries to fill the role, it is advisable to have a corporate executor, such as a trust company, or persons with specialised skills such as law or accountancy handle very complex estates.
The Administrator General's Department also carries out the role of executor if so appointed by the testator.
Executors need not be intimidated by the job, as many of the functions are generally carried out by the attorney at law dealing with the settling of the estate. It makes sense, anyway, to become conversant with the issues and the relevant regulations to better relate to the legal processes involved in the settling of the estate.
Executors are entitled to a fee of six per cent of the value of the estate, which is paid out of the estate before the distribution of the assets to the beneficiaries, but friends and relatives may be prepared to take a smaller fee or none at all.
Executors should be willing and available, should have integrity and good judgement, and should be honest.
- Oran A. Hall, principal author of 'The Handbook of Personal Financial Planning', offers personal financial planning advice and counsel. firstname.lastname@example.org.