Dealing with an Unresponsive Executor

11 December 2019

If the Will appoints joint Executors, each Executor can decide whether or not they wish to be involved in the Estate administration. If a joint Executor agrees to act but then later becomes uncontactable or unresponsive, this can cause difficulties and delays during Probate. In this article, we look at how this particular issue can be overcome.

Can One Executor Act Without the Other?

If you are acting as a joint Executor alongside someone who becomes unresponsive or uncontactable during Probate, your first question is likely to be whether you can continue administering the Estate on your own.

If the Will names two or more joint Executors, then one of the Executors can only act alone if the other Executor formally agrees to this. This can be done in one of two ways. Either with a document called a Deed of Renunciation, whereby they give up the role and its responsibilities, or by having Power Reserved to them. Having Power Reserved means they are stepping aside and allowing the Estate administration to continue without them, but they can apply to become involved again later if they wish to do so. When an Executor renounces from their role, however, it's not usually possible for this to be reversed.

If the Executor wants to retire from their obligations, they will need to sign and date the Deed of Renunciation in front of a witness to confirm this. If the Executor wants to have Power Reserved, 'notice' needs to be given to the Executor who is taking a side step but he/she will not need to sign the document.

However, if an Executor has already carried out some work on the Estate before deciding that they do not want to be involved anymore, signing a Deed of Renunciation may not be possible. Officially, this is called 'intermeddling' because they may have already taken certain steps and for that reason they cannot unequivocally retire from their appointment as Executor. This is a complex area and advice should be taken so as not to delay the administration of the Estate unnecessarily.

Removing an Unresponsive Executor

If a Grant of Probate has been already been made naming all Executors and one or more Executors are being unresponsive, this will have a detrimental impact on the Probate process. If every effort has been made to contact the joint Executor but this has been unsuccessful, sadly the Estate administration will be unable to move forward. This is because all acting Executors will need to continue to work alongside one another and co-sign paperwork such as the property sale contract.

In this situation, the only course of action may be to apply to the Court to have the Executor removed.

This should be a last resort once all other possible avenues have been exhausted. If an Executor has become unresponsive part way through the Probate process, it's important to maintain as much communication with them as possible and try to establish the root cause. It may be possible to resolve the issue without the need to make an application to the Court. We would always recommend this as the first course of action, as making an application to the Court to remove an Executor can be a lengthy process which would only delay Probate further.

Often a joint Executor will also be named as a Beneficiary of the Estate, meaning it's also in their best interests for the administration of the Estate to move forward. If this is the case, it's likely that they will be willing to cooperate under the right circumstances, and there could be a simple explanation as to why they have become unresponsive.

If every effort has been made to engage the joint Executor but this has proven to be unsuccessful, then, as mentioned above, the only option may be to make an application to remove the Executor. It will be up to the Court to decide whether or not to agree to this, and they will consider a number of factors including whether or not they believe this to be in the best interests of the Estate and the Beneficiaries. If you are planning to take this route, it's important to obtain specialist legal advice, as the process can be complex.

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