When is enough, enough? Grounds to remove/replace a Personal Representative.

What is a Personal Representative?  

A Personal Representative is appointed either through a will or through the rules of intestacy (when someone passes away without a will). Their duties include:  

1. Collecting and protecting the estate assets 

1. Paying liabilities such as any debts or taxes owed 

1. Keeping accurate records including estate accounts  

1. Distributing assets to the beneficiaries.  

It is important that a Personal Representative always acts in the best interests of the estate and beneficiaries, and avoids conflicts of interests, to avoid removal/replacement. These are key elements of what are known as a Personal Representative’s fiduciary duties.  

Grounds for removal/replacement 

A Personal Representative can be removed under s50 Administration of Justice Act 1985 or s116 Senior Courts Act 1981 by a beneficiary or co-Personal Representative.  Some of the most common allegations made against Personal Representatives include: – 

1. Mismanagement of Estate Assets – for example using estate money or assets for personal use. 
2. Failure to keep Estate Accounts – failing to keep and provide beneficiaries with estate accounts. This on its own is unlikely to be a good enough reason to remove a Personal Representative. 
3. Conflict of interest – if there is evidence to suggest that their personal interests are conflicting with their duties to administer the estate. There must be more than just a potential for conflict, there should be an appearance of an actual conflict. 
4. Incapacity or unfitness – for example, the executor has lost their mental capacity, have been convicted of a criminal offence or are bankrupt, rendering them unsuitable to act. 
5. Irretrievable breakdown in relations – for example between the Personal Representatives and/or beneficiaries to the extent that it hinders the administration of the estate. 
   

Court’s discretion  

The Court has a broad discretionary power to remove/replace a Personal Representative. But how is their discretion exercised?  

In broad terms, the Court will look at whether the administration of the estate is being carried out properly. They will look at the Deceased’s wishes, the size of the estate, and the welfare of the beneficiaries. Ultimately, they will consider whether it is in the best interests of the estate and beneficiaries as a whole to replace one or more of the Personal Representatives. 

Costs implications in removal proceedings  

The general rule in Court proceedings is that the losing party will pay the winning party’s costs. The general rule where Personal Representatives are involved in Court proceedings (in that capacity), is that they can recover their costs (and any costs they are ordered to pay) from the estate – although the Court can disapply this general rule if they are considered to have acted unreasonably in the Court proceedings.  

It is likely that if the Personal Representative contests the claim and they lose, they will have to pay for the applicant’s costs as well as their own. In these circumstances, you could also expect the Court to disapply the general rule allowing the Personal Representative to recover these costs back from the estate – although this is not always the case and the Court decides this issue on a case-by-case basis.   

However, if the removal application is unsuccessful, then the losing party will likely have to pay for the Personal Representatives costs and their own costs.  

Careful consideration is therefore required to understand the costs implications of making an application and expert advice should be sought before proceedings are issued.  

Obtain legal advice  

The removal of a Personal Representative is complex, and it is recommended that parties seek legal advice at the earliest opportunity. If you are considering making an application, or if you are a Personal Representative facing a potential removal, please do not hesitate to contact one of our specialists who will be happy to help.

Upcoming seminar: Dealing with problematic Personal Representatives – pre and post removal

Don’t miss our upcoming seminar dealing with problematic personal representatives on 23 April from 18:30. Tom Dickinson and Elliot Booth will explore the Court’s current approach, recent case law, and the practical options available to beneficiaries and Personal Representatives when concerns arise in the administration of an estate. Register now to secure your place.