Estate Administration Disputes (Testate Estates)

Released On 21st Apr 2024

Disputes between Executors and the Beneficiaries of Estates have become much more common in recent years. Often, the dispute has its origins in both parties being uncertain about precisely what the Executors’ duties are and what rights the Beneficiaries have.

Executors’ Duties

Where a person dies leaving a Will which appoints Executors, it is the named Executors who have the authority and the duty to deal with the Deceased’s Estate. So, what do the Executors need to do?

The Executors’ primary duties are to:

ensure that the Deceased’s body is disposed of (it is up to them to decide where, when and how that is done, the wishes of third parties (and even the wishes of the deceased) do not have to be followed, though regard must be had to the deceased’s wishes);
collect in the Deceased’s assets;
pay the Deceased’s debts and liabilities from the assets; and
administer the Estate in accordance with law, i.e. to distribute what remains of the assets after the payment of the liabilities to the Beneficiaries in accordance with the terms of the Will.

When Do The Duties Start?

An Executor’s duties start immediately upon the Deceased’s death.

That is because their authority and ability to deal with the Estate derives from the Will. From a practical perspective though, Executors will usually need to obtain a Grant of Probate to complete the administration of an Estate (particularly if there is a residential property that needs to be sold).

What if There is More Than One Executor?

Where more than one person is appointed as Executor, each Executor has the authority and duty to administer the Estate, unless a Grant of Probate is obtained from the Court, in which case only the Executors to whom probate has been granted have the power and duty to act.

If there is a dispute between the Executors about how the Estate should be administered, each Executor has the authority to carry out the Administration and deal with the Estate’s assets unilaterally.

However, acting without the consent of one’s Co-Executors can create problems and leave one open to personal liability for failing to administer the Estate properly, particularly if some or all of the Beneficiaries disagree with the action taken.

By When Must The Duties be Discharged?

Under the law, there is no set or strict deadline by which an Estate has to be Administered and distributed (though s.44 Administration of Estates Act provides ‘a personal representative is not bound to administer the estate of the deceased before the expiration of one year from the death’, i.e. an administration can take longer and it may be reasonable for it to do so, but if it is not, action can be taken by the Beneficiaries for failure to administer properly.

In the event of a dispute, reference can be made to “the Executor’s Year” - the principle under s.44 suggesting that Executors ought to have finalised a straightforward Estate within a year of a Grant of Probate being issued.

However, notwithstanding “the Executor’s Year”, Executors must act promptly and finalise the Administration and make a final distribution as soon as reasonably possible (that duty arises from their position as a fiduciary).

Failure to administer and make a final distribution promptly can be grounds for Co-Executors and/or the Beneficiaries bringing a Claim in Court seeking an Order that the defaulting Executor(s) be removed from office (and they also will likely Claim any loss the delay has caused from the defaulting executor personally).

How Must The Duties be Discharged?

Often, it is the issue of how the Estate is administered that causes Executors and Beneficiaries to fall out.

If you are concerned about how you should go about dealing with an Estate, or if you are concerned that an Estate you should benefit from is not being dealt with properly, it will likely be best for you to seek professional legal advice.

To help you decide whether to take advice, the following principles are worth bearing in mind:

Executors must:

do as the Will says;
act in the Estate’s best interests;
act impartially as between the Beneficiaries;
not let their own private interests affect the administration of the Estate;
not profit from the administration;
preserve/maximise the value of the Estate (and not cause it unnecessary loss);
notify the Residuary Beneficiaries of any claims being made against the Estate; and
provide the Residuary Beneficiaries with such documents as enable them to ascertain whether they have a claim against the Executors for failure to administer the Estate properly.