An executor of a will has a legal duty to administer the deceased’s estate in accordance with the terms of the will and the law. If an executor does not follow the will, they are in breach of their legal duties.
Executors owe a fiduciary duty to the estate and its beneficiaries, meaning they must act in the best interests of the estate at all times, not in their own personal interest.
Common examples of an executor not following the will include
- Distributing assets incorrectly
- Selling estate property at undervalued prices
- Failing to pay debts or inheritance tax
- Refusing to communicate with beneficiaries
- Causing unreasonable delays in the administration process
The consequences for an executor who breaches their duties can be serious. A court can order the executor to repay money or return assets to the estate. The executor can be removed and replaced. Personal liability may apply even where the breach was a genuine mistake rather than intentional misconduct.
What is a breach of executor duties?
A breach of executor duties occurs when an executor fails to carry out their legal responsibilities properly. Under section 25 of the Administration of Estates Act 1925, executors are required to collect the deceased’s assets and administer the estate according to law.
Breach of duty can take many forms, including failing to distribute the estate in accordance with the will, failing to account for liabilities before making distributions, selling assets below market value, neglecting estate property, and failing to keep accurate financial records. All of these are breaches of executor duties.
Self-dealing is one of the most serious forms of breach. An executor who takes estate assets for personal gain, sells property to themselves at a discount, or prioritises their own inheritance over other beneficiaries is acting in clear breach of their fiduciary obligations.
What constitutes serious misconduct of an executor?
Serious misconduct of an executor goes beyond simple mistakes or minor delays.
Serious executor misconduct includes fraud, theft from the estate, deliberate mismanagement, prolonged refusal to communicate with beneficiaries, and wilful disregard for the terms of the will.
Courts distinguish between honest errors and deliberate wrongdoing. An executor who makes a genuine administrative mistake may still face personal liability, but the court has discretion to relieve them of liability under section 61 of the Trustee Act 1925, where they acted honestly and reasonably.
Serious misconduct carries no such protection. Fraud and theft by an executor can result in criminal prosecution as well as civil claims, and there is no time limit for bringing a claim against an executor based on fraudulent breach of duty.
How to prove executor misconduct in England and Wales
Proving executor misconduct requires evidence that the executor breached their duty and that this breach caused a loss to the estate or its beneficiaries. Keep written records of all communication with the executor.
Emails, letters, and text messages that show a pattern of delay, refusal to engage, or contradictory statements are valuable evidence.
Beneficiaries can request an inventory and account of the estate’s financial dealings.
Residuary beneficiaries, who are those inheriting a share of the remaining estate, are entitled to see the estate accounts.
Discrepancies in these accounts, unexplained transactions, or missing assets can support a claim of misconduct.
Valuation reports, property sale records, and bank statements can demonstrate that assets were sold at undervalued prices or that estate funds were diverted. A solicitor experienced in contentious probate can help you gather and present this evidence effectively.
How can I deal with an unresponsive executor of a will?
An unresponsive executor can create real problems for beneficiaries. Estate administration stalls, bank accounts remain frozen, property may decline in value, and beneficiaries are left without their inheritance.
- Write to the executor: The first step is to write to the executor directly, setting out your concerns in clear terms. Request a specific update on the estate’s progress, including details of assets, liabilities, and a timeline for distribution. Keep a copy of this letter, as it may be needed as evidence later.
- Instruct a solicitor to write on your behalf: A formal solicitor’s letter often prompts action where personal correspondence has not. The letter can outline the executor’s legal obligations and warn of the consequences of continued inaction, including potential court proceedings.
- Consider mediation: Mediation offers a less adversarial route to resolution. An independent mediator can facilitate communication between the parties and help reach an agreed way forward. Mediation avoids the cost and stress of court proceedings and can preserve family relationships.
- Apply to the court: Court action becomes necessary when other approaches have failed. Beneficiaries can apply for an order compelling the executor to provide an inventory and account of the estate. The court can compel the executor to act, or remove and replace them entirely under section 50 of the Administration of Justice Act 1985.
Our executor dispute solicitors have the expertise and experience to support you through sensitive and complex disagreements with co-executors and beneficiaries.
