Once a Personal Representative has been appointed they cannot be removed – or can they?

What is a Personal Representative?

Personal Representatives are individuals who have legal authority and responsibility to administer a deceased’s estate. There are two types of Personal Representatives; an Executor and an Administrator.

An Executor is appointed under the last Will and Testament of a deceased. In absence of such a document, then an Administrator is appointed dictated by the Rules of Intestacy.

Personal Representatives have an overriding duty when administering an estate and their duty falls within the scope of Section 25 of the Administration of the Estate Act 1925 (“The Act”).

What does a Personal Representative have to do?

In essence, a Personal Representative has a duty to collect in the real and personal estate of the deceased and administer it according to the law.

What if a Personal Representative is not acting in accordance with their duties?

If a Personal Representative fails to act in accordance with their duties then a beneficiary, co-executor or co-administrator can force that individual to act in accordance with their duties as prescribed by law.

What steps should I take if a Personal Representative is not acting in accordance with their duties?

There are many ways in which a Personal Representative can be found to not fulfil their duties. If this is the case, the first step is to write to the individual directly requesting that an account of the administration of the estate be provided as soon as possible.

If the response is not satisfactory, a beneficiary or co-executor/co-administrator has the right to apply to Court to remove and substitute them.

How can I remove a personal representative?

An application can be made requesting the Court to exercise its discretion in either appointing, removing or substituting a Personal Representative.

Such an application will require detailed reasoning on why the Court should exercise its discretion in such a way and that there is a threat to the proper administration of the estate if the Court does not exercise its discretion in the way requested.

These types of applications are not straightforward as there is a requirement to show that the Personal Representative is not acting in accordance with their duties and requesting the Court to remove them.

The Court will need to be satisfied that the Personal Representative is unsuitable for such a position as a result of serious misconduct.  Section 50 of the Administration of Justice Act 1985 provides the High Court with the discretionary power to appoint a substitute or terminate the appointment of a Personal Representative.

This application will need to be made in accordance with Part 57 of the Civil Procedure Rules 1998 which sets out the requirements that are needed when making such an application.

What if a Personal Representative agrees to be removed?

If a Grant has been extracted and the Personal Representative no longer wants to act or refuses to do so then either they or someone else can make an application for the revocation of the Grant under Rule 41 of the Non-Contentious Probate Rules 1987.

It is important to note that such an application can only be made by the Personal Representative themselves or by someone else enclosing the consent of the Personal Representative.

For further advice and assistance contact Maninder Mann, Solicitor in our Dispute Resolution team on 01604 828282 / 01908 660966 or email maninder.mann@franklins-sols.co.uk.