When someone dies, the executor named in their will is responsible for administering their estate. Administration of the deceased's estate must be carried out in accordance with the instructions left in their will, and in line with the legal obligations associated with the role.

In most cases, executors carry out this task diligently and with care. However, problems can arise when an executor fails to meet their obligations, oversteps their authority or acts in their own interests rather than those of the estate or its beneficiaries. In legal terms, these errors or failures during the estate administration process may represent executor misconduct, this can lead to the executor being personally liable for financial losses and facing serious allegations. 

If you're concerned about an executor's actions and believe they're not fulfilling their obligations, it's important to speak to a solicitor at your earliest opportunity. At Switalskis, we specialise in keeping beneficiaries informed about their rights and representing them throughout the legal process if they decide to take action against an executor. It is important to act quickly, as it can be much more difficult to stop the executor from distributing assets or to recover assets that have already been given away once the probate process is underway.

Here, our expert contentious probate team outlines some common examples of executor misconduct that beneficiaries may encounter, and the legal actions that beneficiaries may be able to take if they believe an executor is failing in their duties.

What is executor misconduct?

Executor misconduct is a legal term that refers to any act or omission by an executor that breaches their legal responsibilities in estate management. Executors owe a duty of care to the beneficiaries and must act in good faith, with honesty, diligence and impartiality. Any failure to do so may constitute misconduct, although it is important to seek legal advice before taking legal action in response.

Misconduct can range from deliberate wrongdoing to careless mistakes. The courts do not require evidence of dishonesty for an executor to be held accountable, as negligent or poor administration can also warrant intervention. In many cases, executors see their role as a position of power, whereas it should be regarded as a duty to the estate and its beneficiaries. 

Executors may need to make important decisions about the estate, such as when it comes to selling the deceased's assets, and they have a legal duty to make decisions in the best interests of beneficiaries and the estate itself. If the appointed executor fails to sell property at a fair market price, or if the executor sells the property at a significant discount to someone they know, this may represent misconduct. 

What are the most common examples of executor misconduct?

Executor misconduct can take many forms, ranging from intentional fraud at the expense of the estate to errors in administration or failures in communication. Whatever the cause behind the misconduct, any of the following examples of an executor's conduct may lead to estate disputes and could result in legal consequences.

Misappropriating estate assets

An executor must not use estate funds or property for their own personal benefit unless they are authorised to do so by the will. Selling estate assets at below-market value to friends or family, or spending estate money without justification might be signs of breaches of fiduciary duty. Executors should maintain accounts of the estate and their own expenses, and provide copies when beneficiaries request them. Failing to do so might lead to an application to the court for a full inventory and account by the executor. 

Failing to distribute the estate

One of the core responsibilities of an executor is to collect the estate’s assets, settle debts, and distribute what remains to the rightful beneficiaries. Delaying this process without a valid reason can constitute misconduct, whether that means holding back funds without justification or, in the most serious cases, making no progress at all and neglecting all relevant duties.

There is no legal time limit for distributing an estate, but it should be concluded in a timely manner and it is generally assumed that the executor should be able to administer a straightforward estate within 12 months. Unless they can provide a clear explanation, any delays beyond this point may lead to executor disputes and a legal process to move things forward. Typically, if the estate is large or particularly complex, this process might take longer. The executor should communicate with the beneficiaries, particularly if there are unexpected delays. 

Conflicts of interest

Executors are expected to act impartially, but this can be challenging when an executor is also a beneficiary of the estate. Problems can arise when the executor favours their own interests over those of others - for example, by allocating themselves valuable items or refusing to sell property because they wish to keep it. Courts take a strict view on conflicts of interest, and perceived bias may be enough to justify removal - even if the executor favours a particular beneficiary other than themselves. This can also be relevant to trustees, if the will establishes a trust where trustees are empowered to make decisions about how the deceased's estate should be distributed. There are various complex legal requirements when it comes to trustee conduct and suitability. 

Poor record-keeping or refusal to account

Executors must keep clear and accurate records of all income, expenditure and decisions they make during the administration of the estate. If a beneficiary asks to see the estate accounts and the executor refuses, this is likely to result in a dispute. 

Executors should be given some time to prepare accounts before they provide them, and there may be legitimate reasons why they need a reasonable timeframe in which to gather their accounts together. As such, you should seek expert legal advice on whether or not this constitutes neglect by an executor, versus a reasonable administrative delay.

Failing to take proper care of estate assets

Executors must act prudently when managing estate property. If they fail to secure, insure or maintain valuable assets - for example, by leaving a property uninsured, allowing it to fall into disrepair, or failing to collect outstanding debts due to the estate - they may be held personally liable for any resulting losses. Even honest mistakes can be treated as a breach of duty if they result from carelessness or a failure to enact proper administration of the estate.

Acting without authority

Executors only gain legal authority to act on behalf of the estate once they have obtained a grant of probate - not immediately after the testator's death. Any action taken before this may be unauthorised, including if the executor sells property, closes bank accounts or distributes items. This includes situations where they are following the deceased's wishes, although this doesn't usually lead to inheritance disputes unless these actions represent significant losses or harm to the estate or beneficiaries.

If an executor fails to uphold their legal obligations, follow the deceased's will (which is a legal document) or acts in any of the ways described above, it may be possible to take legal action. Through court proceedings, it's sometimes possible to remove an executor from the role and potentially seek for them to repay any losses to the estate, but it's important to speak to a solicitor and seek legal support before taking this step.

What can beneficiaries do about executor misconduct?

If you are a beneficiary and believe the executor of someone's estate is not fulfilling their responsibilities properly, there are several steps you can take. While legal proceedings are sometimes an option, the right approach will depend on the nature of the issue and the risk to the estate posed by an executor who is engaged in misconduct.

Request accounts and updates

Start by making a formal request for information. Beneficiaries have a right to be kept informed about the administration of the estate and to receive accurate accounts. Many issues can be resolved at this stage if the executor is simply being slow or uncommunicative. If your request is ignored, you should speak with a specialist contentious probate solicitor. 

Try alternative dispute resolution

When disputes arise, it's often best to try to resolve them informally before going to court. If you seek advice from a specialist lawyer, they may be able to reach a solution through written correspondence and negotiations. You may be able to resolve certain issues through a form of alternative dispute resolution, such as mediation. 

Apply for an inventory and account

If the executor refuses to provide financial information voluntarily, a beneficiary can apply to the probate court for an order requiring the executor to produce an inventory of estate assets and a detailed account of their administration. This is known as an inventory and account order, and it compels the executor to formally explain their handling of the estate. It is another approach to court proceedings that may not result in the executor being removed, but can help beneficiaries find the information they need.

Apply to court to remove the executor

In more serious cases, it may be appropriate to apply to court to have the executor removed. This is only possible in cases where you can demonstrate that misconduct is affecting the estate administration process - it is not a step the court takes lightly and clear evidence of misconduct, negligence, or a conflict of interest is usually required. If you are successful, the court can issue a court order to remove an executor who is acting improperly or is no longer capable of performing their role. Usually, a professional executor will be appointed in their place, such as an experienced trust and estate practitioner who can manage the estate according to the deceased's wishes.

Working with a solicitor

Beneficiaries can suffer real and lasting harm when an executor fails to uphold their legal and moral responsibilities. They may lose inheritance if the executor makes poor financial decisions, experience emotional distress due to an extended probate process or end up in a protracted legal dispute. If gifts to specific friends or family members are not managed correctly, they could be lost, while residuary beneficiaries could see their inheritance dwindle if the remaining estate is not managed correctly.

In these cases, it's vital to challenge executor misconduct through any of the legal avenues available, which range from informal requests for accounts to formal court applications. Seeking early advice from a contentious probate solicitor with experience in disputes can help protect your rights and the estate’s integrity. At Switalskis, we have helped many clients to hold executors legally responsible for their mistakes, and protect estates against the risks of serious misconduct. If you have serious concerns that an executor is not acting in your best interests, or those of a loved one's estate, contact us today.

Call Switalskis on 0800 138 0458 or use the form on this page to contact us through the website.