Common types of executor disputes
• Delays in administering the estate or distributing assets
• Failure to communicate with beneficiaries
• Failure to provide information or estate accounts
• Disputes between co-executors
• Conflicts of interest
• Executor negligence or misconduct
• Missing, undervalued or mismanaged estate assets
• Failure to pay a beneficiary
• An executor who is incapable of acting or cannot be located
Issues with executors
Careful consideration should go into who is appointed as executor to deal with someone’s estate. However, even where that has happened, problems can arise where beneficiaries, co-executors and even some third parties struggle to get information or move matters forward.
Any executor decision usually requires a majority, and in situations where there are just two people acting, it is not uncommon to see one who is perhaps unable to act, or where both are at loggerheads, and the result is a deadlock meaning nothing can progress with the estate. If this happens in practice, either the co-executor or any beneficiary can seek a remedy via the Court.
Even if there is no deadlock, situations can arise where progress is not being made, beneficiaries are perhaps left in the dark, or where it may seem that an executor is acting in their own interests rather than fulfilling their legal responsibility to the estate.
Our team can assist you in liaising with an executor to ensure that they are acting as they ought to, and pursuing action against them if required.
How our executor dispute solicitors can help
What information can a beneficiary request from an executor?
Often one of the biggest hurdles for beneficiaries is not knowing what they are entitled to, or a lack of transparency as to what executors are doing with an estate. Any beneficiary is entitled to see the part of the Will that confirms what their entitlement is and is also able to call upon an executor to account for their dealings with an estate. This may include seeking relevant information and estate accounts to understand how assets have been valued, managed and distributed.
This is a powerful remedy to get clarity on what has happened with assets and to raise queries on anything that might appear missing, undervalued or that could be a breach of trust. We have acted in a number of actions for beneficiaries pursuing such information and can certainly help you answer any nagging doubts you might have had.
What can you do if an executor is delaying an estate?
Where there has been a lack of progress and it is unclear what the delay is, we can also assist in applying pressure to executors to move matters on. They are under a duty to make progress and avoid delay, so a failure to act is, technically speaking, a breach of their duty.
One way to compel executors to act is by raising an action for payment of your entitlement, this can often trigger them to take action and sell assets to be able to pay you your share and progress the estate.
Alternatively, seeking their removal (see below) or the appointment of a judicial factor (a third party whose sole role is to wind up an estate) might trigger progress. A judicial factor can be costly to an estate so is often a last resort remedy, but in some situations it may be the only option.
We can advise on the most proportionate and cost effective way to move matters forward and resolve executor disputes.
Disputes over appointing an executor when there is no will
If someone has died without a will, they won’t have nominated someone to act as executor. The law of intestacy allows anyone who will benefit from the estate to apply to the court to be appointed as executor. This can result in a race to the court to be appointed if multiple people are entitled to act. Where more than one person is entitled to apply, disputes can sometimes arise over who should administer the estate.
The only statutory objection to a petition for someone to be appointed as executor in these situations is where the person was somehow involved in the death of the person whose estate it is.
Otherwise, the court’s role is largely administrative, and they appoint someone if they have an entitlement to an estate. If you do have concerns about a person’s appointment and their role as executor, it is competent to seek the court to appoint you as a joint executor with that person. Our team can assist you with such a petition to the court and any onward process.
Can an executor be removed in Scotland?
There are circumstances where it may be necessary to remove and replace an executor.
Where the issue is simply that there is an executor who can no longer act due to their incapacity, or if they have gone missing, this may require a court application to seek their formal removal and to allow the remaining executor to press on.
It can be more problematic if you are seeking the removal of someone because they are unfit to act or they are simply not engaging. This will require evidence to show the court that it is not just that executors do not get along, but the person is obstructing or refusing to progress the administration of the estate or trust.
Our team have helped both beneficiaries and co-executors through these difficult actions and are happy to discuss the steps involved.
Claims against executors for negligence or loss to an estate
Executors have legal duties when managing estate assets, if it transpires that an executor has done something they didn’t have power to do, or had the power but it was perhaps not in the best interests of the estate, and this has resulted in a loss to the estate or trust fund, then there may be a remedy to seek repayment to the trust or estate from that person. We can review the terms of any will and advise on whether a breach has occurred and help you through the process of seeking redress.
How are executor disputes resolved?
Where the best route involves the courts, our lawyers understand the importance of guiding clients through the process step by step and ensuring that everything is thoroughly prepared. We have extensive experience in the Sheriff Court, Supreme Court, Court of Session, as well as before numerous Tribunals and Inquiries.
However, court is not the only remedy to these challenges. There is often a negotiation with the executor or trustee, and it may be that mediation is suggested to try to resolve matters without proceeding to Court where someone will inevitably lose out. Our team can discuss these options with you, and the risks of proceeding to court as matters progress.
Why choose our service if you have an issue with an executor?
Our solicitors have a wealth of combined experience and expertise when it comes to advising on these difficult challenges and to helping people through the process whilst grieving.
Our specialist team is ranked tier 1 in the Legal 500 for Contentious Trust & Probate work and includes partners Scott Flannigan who won the Legal 500 Dispute Resolution Rising Star of the Year, 2023 and SJ Macdonald who is ranked Band 2 in Private Wealth Disputes in Chambers & Partners.
Our expert team have various professional memberships, demonstrating their expertise, including the Society of Trust and Estate Practitioners (STEP), STEP Advanced Certificate in Trust Disputes, and law society accreditations.
Our expertise with will disputes also extends to advising beneficiaries on removal of executors and other problems with executors/trustees, legal rights issues, varying trust powers, purposes of trustees, dealing with the validity of homemade wills, and other similar problems.
Speak to our executor dispute solicitors today
To discuss an executor or estate administration dispute with a member of our specialist team, please get in touch today.
Contact us on 0131 270 7700, visit our offices in Edinburgh, Glasgow, East Lothian, Shetland or Orkney, or fill in our enquiry form to request a call back.