Can an Executor be Sued? - JMW Solicitors

5th August 2022 Will Disputes

If an executor has made mistakes or errors, purposefully or by accident, that have led you or any other beneficiaries of a will to suffer, you may be able to make a claim against them. When an executor is appointed to a will, they are required to state that they are willing to take on the responsibility.

If they do not do this successfully, you may be able to remove an executor or make a compensation claim against them after the fact. 

In the following post, we will explore how you can remove or sue an executor. For more information about our contentious probate services, visit our Trustee or Executor Disputes page.

Should I Remove or Sue an Executor?

Before you decide to do anything, you should consider a number of factors that may come into play when taking legal action.

Firstly, it is important to understand the sensitive nature of dealing with wills, trusts and estates. Everyone involved in the wills process after the death of the testator (person who created the will) may be suffering from grief and this could affect their ability to act out their responsibilities.

However, an executor should understand the importance of their role when deciding whether to accept it. While making a claim could cause more unwanted stress during this already difficult time, it may be the best way to recoup some of what you are owed.

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. Succeeding in your claim is likely to afford you the finances to pay for your legal fees and may help with reparations for other ways you have suffered. 

It is important to consider these factors before starting a claim, and seeking the help of professional solicitors will allow you to do so, as they will be able to assess your situation and explain what you may be entitled to and your chances of success.

How to Remove or Sue an Executor

There are different processes for removing and suing executors and, depending on which one is relevant to you, you should inquire separately about it. 

Remove an Executor from a Will

To remove an executor from a will, the probate (the court’s acceptance of the will) must have been passed and the will should not have been distributed fully yet.

Before taking any legal action, you should try addressing your concerns with the executor in the form of a formal letter, asking them why they have acted in the way they have, and whether they will willingly step down from the position. This is important as it may help you to avoid costly legal action.

However, if they do not accept, you may make a claim to the court to have them removed and replaced.

If 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.

You will then need to submit an application to the court, including the following:

  • The original letter granting probate or administration rights to them
  • A statement detailing the reasons why the beneficiaries want the current executor to be removed
  • Documents detailing the items included in the estate and the names of the beneficiaries
  • 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

To be successful, 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.

Sufficient evidence must be provided in the form of documents or witness statements, and they must be brought to the court hearing.

Suing an Executor

To sue an executor you must provide evidence that they have acted negligently or illegally, meaning this is only possible once the will process has been completed.

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.

Claiming compensation against an executor is the same as claiming any professional negligence and should be facilitated by experienced solicitors who may be able to mediate and resolve the issue without court proceedings.

This is done by notifying the other party of the fact that a claim is being made against them, in which case,  they may simply accept and pay what is due. However, it does not always work so easily, and court proceedings may be necessary with the help of a solicitor.

JMW Can Help

The expert wills, trusts and estate team at JMW can assist you with all of the above. Our team is experienced in wills, trusts and estate disputes and all of the issues that come with them. We will be able to provide you with professional legal advice, guiding you through the process of making a claim and collecting evidence, facilitating communications between the court and other parties, and representing you if necessary.

Click here for more information on how we can help you.

For legal advice and guidance on removing or suing an executor, call 0345 872 6666 or fill in an online enquiry form and we will return your call.

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