How to Stop a Solicitor or Bank being the Executor of a Will

14 February 2018

By Probate Solicitor, Stephen Carruthers

An Executor is the person (or people) that a deceased person named in their Will to take on the role of administering their Estate. Many people choose to appoint a friend or family member as an Executor, but it’s also possible to appoint a professional such as a Solicitor or a bank.

If a Solicitor or bank has been appointed as the Executor of a deceased person’s Estate and you want to remove them from this role, then the first step would be to contact them to request that they renounce (resign) as Executor.

How Can I Find Out Who the Executor Is?

After a death has been registered, one of the next steps involves confirming whether the deceased left a valid Will. If there is a Will, then it’s likely that this will leave clear instructions on how they would like their Estate to be distributed and who they would like to be responsible for carrying out this task, known as the Executor.

Locating the Will can be easier said than done. Often the Will is stored with the bank or family Solicitor, but if this is not the case, then it could be held by the deceased’s family or a copy of the Will might be with the deceased’s papers. If these searches draw a blank, you may wish to instruct a company to carry out a Will search. It is even possible to compel a person to attend Court if you believe them to hold a Will but they are not being forthcoming.

Often a firm of solicitors or bank will release the original Will on the signed authority of all the Executors, together with proof of identity.

What if the Executor is a Bank or Solicitor?

If a professional is appointed as an Executor by the deceased then they have a duty to ensure that the Estate is administered in accordance with the terms of the Will. However, the family may wish for the professional not to act. For example, there may be substitute Executors who are willing to act alone. Or, even if this is not the case, there may be Beneficiaries who would like to take control of the Estate administration process. 

In many cases, banks and solicitors will act in accordance with the family’s wishes. It will simply be necessary to ask that they sign a deed of renunciation. They may also have to sign a ‘deed of retirement as trustee’ if the Will contains any Trust elements. It’s worth noting that most firms will charge a small fee for the preparation of these documents.

It is also important to note that an Executor cannot renounce their role if they have already begun work on the Estate, for example by accepting assets or paying off debts. This is known as ‘intermeddling’. 

What if They Refuse to Renounce?

It is possible to prevent a Grant of Probate being issued. In order to do this, a simple application known as a ‘Caveat’ may be lodged with the Court. With a Caveat in place anyone with an interest in an Estate has time to consider their legal position. Alternatively, a ‘Standing Search’ may be submitted to Court. This will not prevent a Grant being issued, however it will inform the person lodging the application if and when the Grant has been issued.

If work on the Estate has already begun, or the bank or solicitor refuses to Renounce as Executor of the Estate, it may be possible to make a formal application to the High Court to remove them as the Executor. You will need to provide details of why the Executor should be removed, along with the approximate value of the Estate and details of the Beneficiaries. The application will also need to state who will take over the role of Executor in place of the bank or Solicitor.

The Court will consider both sides of the argument and the success of the application will be based on the particular facts of the case. It is important, therefore, to obtain legal advice as soon as possible in order to consider the implications for the Estate and the potential legal costs involved.

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