A Will executor is the person charged with distributing the proceeds of a Will and with managing the deceased individual’s estate. A beneficiary is someone named in the Will.
Given that the executor is someone specifically chosen by the person making the Will, can a beneficiary challenge them? The answer is yes, but only on certain grounds.
Common grounds for a challenge
The role of Will executor involves several responsibilities. The most common grounds for a beneficiary to challenge the executor are a failure to meet one or more of them.
• Mismanagement of assets
A key part of executing a Will is the probating of the deceased person’s estate. This means matters like paying any taxes due and protecting the estate assets. A beneficiary can challenge the executor if they appear to be mismanaging the estate, either by using funds from it for personal reasons, or by selling assets below price without consulting the family.
• Failure to distribute
A second common ground for a challenge is if the executor fails to distribute the assets on time without providing a valid reason. Once the process of Probate is completed, the assets should be distributed promptly. Valid reasons for delays include waiting for replies from the Probate Registry or HMRC.
• Lack of transparency
The beneficiary of a Will can challenge the executor if the latter fails to perform their duties in a transparent manner. This can include refusing to provide progress updates and not supplying the estate accounts.
• Conflict of interest
Another common reason for a challenge is if there appears to be a conflict of interest for the executor. Examples of this can be evidence of them acting out of self-interest or of them demonstrating obvious bias towards individual beneficiaries.
• Fraud or theft
It is legitimate for a beneficiary to challenge the estate executor if they have evidence or suspicions of fraud and/or theft. Evidence of fraud can include the concealing of estate assets, while theft means stealing assets from the estate.
Steps to challenge an executor
1. Direct Communication
The first step in challenging a Will executor is to communicate any concerns directly to them. During this, you can ask them to provide regular updates on the process or a complete inventory of the accounts for the estate. You should maintain a record of these communications, in case it is needed as evidence.
2. Alternative Dispute Resolution
If that first step does not assuage any concerns that you have, you can pursue Alternative Dispute Resolution (ADR). This involves attempting to resolve the problems through the use of a formal written negotiation procedure or mediation by a third party. Most legal professionals strongly encourage Will beneficiaries to use either of these methods to try to sort out issues before instituting court proceedings.
3. A Court Application
If the executor of the Will is not prepared to cooperate with your communications and rejects attempts at mediation, the final step is a court application. This means applying to the court for the executor to be forced to meet their obligations or be replaced by someone who will. The court will only take the latter step if they feel it is essential for the estate administration.
Important considerations and time limits
The time limits for challenging an executor vary based on what the challenge concerns. The standard time limit is 12 years, but this can be different if it is a fraud or theft claim. Furthermore, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 that the executor has not provided adequate financial provisions has to be made within six months of the Grant of Probate date.
Another consideration to bear in mind is that a Will executor has a 12-month grace period from the death date for distributing an estate. This is known as the Executor’s Year.
If you need to make a challenge of this kind and want the help of solicitors in North Wales, call Bennett Smith Solicitors now to discuss the matter.
