The appointment of a person as the Executor or Administrator of an Estate places duties and obligations on them to act promptly, properly and in the best interests of all beneficiaries.
Where an Executor is appointed by a Will it is clear who should deal with the administration of the Estate, if there is no Will then the Intestacy Rules govern who can extract the Grant of Letters of Administration. Usually, these appointments are made promptly after someone dies and that person then gets on with the task in hand, collects in the assets, pays the liabilities and distributes the Estate to the beneficiaries.
In some cases, however, an Executor or Administrator does not get on with the job or seeks to use the role for their personal benefit. Beneficiaries or fellow personal representatives may be frustrated by a lack of agreement as to the steps to be taken or concerned about the actions of their co-administrator.
In these circumstances it is sometimes necessary to apply for the removal of the Executor or Administrator; either to leave the remaining personal representatives in post to progress and conclude the administration or to replace all the personal representatives with an independent professional who can move things forward.
Applications for the removal of Executors
The appropriate application depends on the stage of the estate administration.
Where probate has not yet been granted, an application may be made under Section 116 of the Senior Courts Act 1981, allowing the court to “pass over” an Executor entitled to a Grant of Probate or Letters of Administration where special circumstances justify doing so.
Once a Grant of Probate or a Grant of Letters of Administration has been issued, the principal statutory power is found in Section 50 of the Administration of Justice Act 1985. This provision enables the High Court to remove an existing Executor and appoint a substitute personal representative on the application of a beneficiary or personal representative.
Section 41 Trustee Act 1925 provides similar provisions for the removal of Trustees.
What does the Court take into account?
The test is helpfully set out in the case of Harris v Earwicker [2015] EWHC 1915 (Ch) and can be summarised as follows:
- There is no need for the Court to find wrongdoing or fault on the part of the personal representative whose removal is sought but the removal must be in the best interests of the beneficiary
- If there is wrongdoing or fault the Court will be likely to exercise its power to remove if it is material and causes issues for the Estate
- The wishes of the testator – set out in the Will – will be taken into account
- The wishes of the beneficiaries may be taken into account but beneficiaries (or some of them) are not entitled to demand a replacement be appointed
- The breakdown of the relationship between the personal representative and some or all of the beneficiaries will not of itself justify the Court removing the personal representative but might be the only option for the Court if otherwise the administration of the Estate will be hampered; and
- The cost of a professional replacement will be a material consideration and so the size and nature of the Estate and the scope and cost of the work have to be looked at.
This approach was reaffirmed in Schumacher v Clarke [2019] EWHC 1031 (Ch).
Overall, the Court’s discretion under Section 50 Administration of Justice Act 1985 is broad and forward-looking, focusing on whether the personal representative continuing in post would prevent the estate from being properly administered.
Recent case law developments
In Long v Rodman & Ors [2019] EWHC 753 (Ch), the court confirmed that unresolved allegations and a serious breakdown in relationships may render an Executor’s position “untenable”, even where allegations have not been fully adjudicated.
More recently, in Fernandez v Fernandez [2025] EWHC 2373 (Ch), the High Court removed an executor where hostility and lack of communication between siblings made administration “unworkable”. Crucially, the court did not require proof of dishonesty. A professional Executor was appointed, and the removed Executor faced a significant adverse costs order, with limits placed on any indemnity from estate funds.
Ways to resolve problems
It is not always necessary to make an application to the Court or Probate Registry to remove an Executor.
Open discussion can cut through issues and help to get an administration back on track.
If the major issue is a lack of information about what is in the Estate and how the administration is progressing, then correspondence can secure a response, or an application can be made for an Inventory and Account to be provided. An Inventory and Account order will require the personal representative to produce to the beneficiaries a detailed summary of the assets and liabilities of the Estate and the steps taken in the administration. If the response is not satisfactory then further steps can be considered and an application for removal can be made if necessary.
Practical considerations and procedure
Applications to remove executors are typically brought under Part 8 of the Civil Procedure Rules, supported by written witness evidence. Live evidence and cross-examination are uncommon.
The court will expect clear evidence of delay, conflict of interest, incapacity, mismanagement, or breakdown in relations that materially affects administration. Failed applications can result in adverse costs orders, making early legal advice essential.
As noted in Schumacher v Clarke:
The power of the court is not dependent on making adverse findings of fact… it will often suffice… that a good arguable case has been made.
Effect of removal
Once removed, the personal representative immediately ceases to have authority. Remaining Executors/Administrators or a court-appointed Independent Administrator will assume responsibility for completing the estate administration.
Who pays?
The question of costs is a matter for the Court and will be entirely dependent upon the circumstances of the case.
The Court has discretion to order that the personal representative being removed pays the costs of the application personally. Such an order is only usually made if a personal representative has been unreasonable or entrenched in fighting the application to remove them or has demonstrably done the wrong thing.
In the alternative the Court could make an order that the costs come out of the Estate itself or that each party pays their own costs.
Mediation
For some time, it was thought that mediation of disputes about whether or not Executors and Administrators should remain in post were not suited to mediation. More recently however the Court has indicated that such disputes may be capable of resolution by mediation and so parties are invited to explore this option.
If mediation is successful that can mean that an application can be made to the Court by consent with the identity of the personal representatives who will conclude the administration agreed and the payment of costs also dealt with.
Contact Us
If you are concerned about the conduct of an executor — or are facing an application for removal — early specialist advice is crucial. Our team have a wealth of experience in resolving issues with personal representatives, whether by removal applications or through careful correspondence. To contact a member of our team, please click here.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
