Can a Beneficiary Sue an Executor? (UK)

If an executor has made mistakes or errors - whether intentional or accidental - that have caused you or other beneficiaries of a will to suffer, you may be able to make a claim against them and/or have them removed from their position. Please note that JMW can only assist with Will dispute cases within England and Wales.

When an executor is appointed to a will, they are required to state that they are willing to take on the responsibility of managing the deceased's estate. If they do not do this successfully, you may be able to remove an executor or make a claim against them for any losses they have caused to the estate.

In the following post, we will explore how you can remove or sue an executor. Our experienced team has lots of information about our contentious probate services; to learn more, visit our Trustee or Executor Disputes page.

When Can a Beneficiary Sue an Executor?

When an executor is appointed to a will, they are required to state that they are willing to take on the responsibility of managing the deceased's estate. If they do not do this successfully, you may be able to remove an executor or make a claim against them for any losses they have caused to the estate.

In many cases, this will be affected by the sensitive nature of dealing with wills, trusts and estates disputes. Everyone involved in the wills process after the death of the testator (the person who created the will) may be suffering from grief and this could affect their ability to act out their responsibilities. It is often possible to resolve executor disputes informally through negotiation or other forms of alternative dispute resolution, without the need for legal action.

However, if the executor fails to manage the estate within a reasonable timeframe or act against the interests of beneficiaries, legal action may be necessary. An executor should understand the importance of their role when deciding whether to accept it, and while making a claim could cause more unwanted stress during this already difficult time, it may be the best way to ensure the estate is dealt with legally, and that beneficiaries get their inheritance in a timely manner.

Are There Common Examples of Executor Misconduct?

Any time an executor fails to meet their legal obligations to an estate and its beneficiaries, this may be a form of misconduct. Executors have a legal duty to follow the instructions of the will and act in the beneficiaries' best interests at all times, which means that anything from distributing assets incorrectly to mismanaging funds could lead to legal action. Examples include:

Self-dealing (buying estate assets at undervalue)

The executor uses their position to benefit themselves, for example by buying estate property cheaply or arranging a deal that creates a conflict of interest. Executors must avoid conflicts and act in the estate’s and beneficiaries’ best interests.

Failing to apply for probate or unreasonable delay

The executor fails to take necessary steps to administer the estate, or delays without good reason, which can hold up payment of debts, sale of assets and distribution to beneficiaries.

Misappropriating estate funds

The executor takes, uses, transfers or spends estate money for an improper purpose, especially if they do so in their own interests for personal use, instead of using it to pay debts or make gifts to beneficiaries. If the executor fails to pay Inheritance Tax, they could face more serious legal consequences.

Selling assets at undervalue

The executor sells estate property for less than its reasonable market value, reducing the estate and causing financial loss to beneficiaries.

Failing to distribute the estate to beneficiaries

The executor does not distribute the estate once debts, taxes and administration steps are complete, or withholds beneficiaries’ shares without proper justification.

Favouring one beneficiary over others

The executor gives one beneficiary preferential treatment, whether by making early payments, giving more information or making decisions that disadvantage others. Executors are expected to act neutrally and impartially.

Failing to keep proper estate accounts

The executor does not keep clear records of assets, debts, income, expenses, sales and distributions. This not only makes it difficult for beneficiaries to verify that the estate has been handled properly, but is a legal requirement for every executor.

What Is an Executor's Fiduciary Duty?

Under the Trustee Act 1925, an executor’s fiduciary duty is the legal obligation to act honestly, loyally and carefully in the best interests of the estate and its beneficiaries.

In practice, this means the executor must protect estate assets, avoid conflicts of interest, not profit personally, treat beneficiaries fairly, keep proper records, pay debts and taxes and distribute the estate according to the will or the law. A breach of fiduciary duty could leave the executor not only legally responsible for their mistakes, but personally liable for any losses to the estate.

Are There Time Limits for Claims Against an Executor?

In England and Wales, the time limit for suing an executor of an estate typically depends on the nature of the claim:

1. Claims against the estate: If you are making a claim against the estate itself rather than against an executor personally, such as under the Inheritance (Provision for Family and Dependants) Act 1975, you may only have six months from the date of the Grant of Probate to bring a claim.  It’s important to seek advice quickly if this is your intended claim.
2. Claims for breach of duty: If you are suing the executor for breach of their duties (e.g., failing to administer the estate properly), the limitation period is usually six years from the date of the breach. However, if the breach involves fraud, there may be an extended time limit, as fraud can extend the limitation period.
3. Claims for recovery of land: If the claim involves land or property, the limitation period is usually 12 years.
4. Other considerations: The specific circumstances of the case can affect the time limit, so it’s advisable to seek legal advice to ensure you act within the appropriate timeframe.

It's important to act promptly and consult a solicitor if you believe you have grounds to sue an executor, as the rules around the time you have to do this are complicated, and the time limit may be short.

How to Prove Executor Misconduct

To sue an executor to recover money for the estate, you must prove that they have caused a financial loss to the estate and that this was directly as a result of the executor’s failure to act properly. You may want to claim against them if they have neglected their duties, or if you have found out that they did not act out the testator’s will in the way that they should have but you will need to show some financial loss to the estate.

You will also need to present strong evidence of executor wrongdoing to make a claim against the executor or take legal action to have the executor removed. Your solicitor can help you to gather evidence, which may include:

• Estate accounts;
• Valuations;
• Correspondence;
• Bank statements; and
• Professional valuations of property and chattels.

You have the right to request estate accounts via the court, and the team at JMW can help you with this aspect of the process.

Applying to Court to Remove an Executor

If you cannot resolve concerns about an executor's conduct informally, legal action may be the best course of action. To succeed in having the executor removed, you will need to prove that the current executor is not fit for the role due to negligence, their own physical or mental health, or that they have intentionally acted unlawfully, which could include fraudulent activity or stealing from the will or that it has become impossible for the executor to continue to deal with the estate.

You will then need to apply to the court, including providing the following:

• The original letter granting probate or administration rights to them
• A statement detailing the reasons why you want the current executor to be removed
• Documents detailing the items included in the estate and the names of the beneficiaries and whether they are all in agreement
• The details of the person who will replace the current executor and a witness statement detailing their suitability
• The replacement executor’s signed consent to undertake the role

Sufficient evidence must be provided in the form of documents or witness statements and the court will not remove an executor without good reason.

When you succeed in having the executor removed, you will need to appoint a new person to take their place. You should choose this person before you make the claim, as the court will need to be informed of your decision as part of the process and that person will need to have consented to be appointed.

If you believe an executor is mishandling an estate, our contentious probate solicitors offer a no-obligation initial discussion. Call us on 0345 872 6666 or request a call back.

Pre-Action Steps and Mediation

It is legally possible to sue an executor of a will, but the choice of whether to do so will depend upon your chances of success. Legal action can be costly and time-consuming, so you should be informed about exactly what the process will be, and decide what you want to achieve from it. With early advice, it is often possible to resolve concerns informally, without going to court, and minimise your legal costs.

As such, before taking any legal action, you should try addressing your concerns with the executor in the form of a formal letter. The letter should start by asking them why they have acted in the way they have, give them an opportunity to remedy any problems and ask whether they will willingly step down from the position. This is important, as it may help you to avoid costly legal action. Concerns often arise from dissatisfaction with the executor's dealings, such as disagreements on estate matters or perceived misconduct. However, if they do not accept, with sufficient evidence, you may make a claim to the court to have them removed and replaced.

The Court Process for Claims Against Executors

Suing an executor is a complex process that should be facilitated by experienced solicitors who may be able to mediate and resolve the issue without court proceedings and can advise you of your prospect of success in what could be a difficult claim. The process would start by notifying the other party a claim is being made against them. In this case, they may simply accept and do what is required or pay what is due. However, it does not always work so easily, and court proceedings may be necessary with the help of a solicitor.

The court process involves applying to the High Court to compel the executor to act, produce accounts, repay losses, or be removed or replaced. The court will usually review evidence such as the will, estate accounts, correspondence, asset valuations, delay, conflicts of interest, or financial loss. If the claim succeeds, the court can order repayment, directions for administering the estate, costs orders, or appointment of a replacement executor. Civil procedure rules may apply depending on the type of claim.