Oran Hall|How to remove an executor
QUESTION: I am writing to you to ask whether an executor can be removed. The situation is that the testator died tragically a decade ago, and the main executor remains overseas and has done nothing towards a probate. The large house belonging to the deceased has been taken over and rented out by non-relatives, expensive vehicles and other properties sit idle without titles, and the adult children are afraid and don’t know what to do. A business place, which the testator bought, was taken away because of the executor not doing anything. Is there a way for any of the children or even grandchildren to remove the executor and finally sort out this matter?
FINANCIAL ADVISER: I am surprised that the family has waited so long to consider taking action because it is possible to remove an executor or executrix of a will. However, 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 (another executor, for example), may make the application. You seem to suggest that there is more than one executor, in which case, each is equally responsible for ensuring that the estate is handled properly.
The reasons for making such an application can include the executor not moving expeditiously thus causing harm to the estate by the assets wasting away. Examples of this could involve the executor misusing the assets or ,not selling estate assets for reasonable prices.
An executor who has been removed can be replaced. Replacement would be necessary if there is only one executor. In a case of more than one executor, 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 the administrator of the estate. Such a person is not called an executor as only the person named in the will can be so designated.
If the beneficiary is a minor, an adult would have to act on the minor’s behalf to have the executor removed.
Let us look at the role of the executor. The executor can be a person or an entity such as a law firm or trust company. One of the executor’s primary functions is to prove the validity of the will in a court of law by applying for the grant of probate of the estate. The court usually grants the probate after it examines and verifies that the will was prepared in accordance with the Wills Act.
Another role of the executor is to satisfactorily carry out the wishes of the deceased person as stated in that person’s last will.
In administering the estate, the executor generally collects, preserves, realises, and distributes the income and assets of the estate.
To collect and preserve the assets of the deceased, the executor takes possession of, or assumes control over, the assets as soon as he is properly able to do so. This means, among other things, gathering and keeping safely the deceased’s documents and property such as the original will, bank books or statements, titles to land and motor vehicles, as well as keys to real property, motor vehicles, and safety deposit boxes.
The executor has an ongoing duty to ensure that the assets of the estate are preserved until they can be realised and the proceeds distributed to the creditors of the deceased, and, thereafter, to the beneficiaries of the estate.
He should ensure that the debts of the deceased are paid; collect money owed to the deceased at the time of death; and seek to get the best price for assets by getting a proper valuation. The executor should also advertise assets for the best possible market exposure. For this, it would be useful to engage the services of professionals where appropriate.
The executor is able to distribute the assets of the estate according to the terms of the will after the court has given the requisite grant of representation. This is usually after all debts, expenses, undischarged mortgages, outstanding loans, government fees, and taxes have been paid and the estate has more assets than liabilities.
The executor should also contact beneficiaries and creditors and consistently update them on the progress of the administration of the estate, and in the end, should be sure to account to the beneficiaries and the creditors of the estate through the courts by filing the accounts of the administration of the estate.
The family must act immediately by engaging an attorney-at-law, whose practice includes such matters.
- Oran A. Hall, the principal author of ‘The Handbook of Personal Financial Planning’, offers personal financial planning advice and counsel. Email email@example.com.