When someone dies and leaves a valid will, it is the duty of the named executor(s) to carry out the wishes of the deceased in accordance with that document. This is a legal responsibility and not simply a suggestion or guideline. Unfortunately, situations can arise where an executor either fails to act, makes serious errors, or deliberately disregards the terms of the will.
At Blackstone Solicitors, we are often approached by concerned beneficiaries who suspect that an executor is not fulfilling their duties properly. In this article, we explain what the role of the executor entails, what can go wrong, and what steps can be taken if an executor does not follow the will.
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Understanding the Role of an Executor
An executor is the person (or people) named in a will who are legally responsible for administering the estate of the deceased. Their key responsibilities include:
- Applying for the Grant of Probate (if required)
- Identifying and collecting the assets of the estate
- Paying any debts, liabilities, and inheritance tax
- Distributing the estate in accordance with the will
Executors must act in the best interests of the estate and its beneficiaries, comply with the terms of the will, and follow all relevant legal requirements. They are fiduciaries, which means they must act with honesty, transparency and diligence.
What Does It Mean to Not Follow the Will?
Failing to follow the will can take many forms. Some are the result of inexperience or poor administration; others may involve more serious misconduct. Common examples include:
- Distributing assets incorrectly: Giving a beneficiary more or less than they are entitled to
- Delays in administration: Failing to progress probate or distribute the estate in a timely manner
- Ignoring specific instructions: Not carrying out particular wishes, such as bequests of personal possessions
- Conflict of interest: Using estate funds for personal gain or favouring one beneficiary over another
- Failing to communicate: Keeping beneficiaries in the dark or refusing to provide updates or accounts
- Mishandling funds: Failing to keep estate money separate or not keeping accurate records
It is important to distinguish between genuine mistakes, which can often be corrected, and serious breaches of duty, which may warrant legal intervention.
What Are the Legal Duties of an Executor?
Executors must adhere to a number of legal obligations. These include:
- Duty to act promptly – Executors should not unreasonably delay administering the estate.
- Duty to administer the estate in accordance with the will – They must follow the deceased’s instructions unless the will is successfully challenged or declared invalid.
- Duty to act impartially – Executors must treat all beneficiaries fairly and avoid favouritism.
- Duty to account – Executors are required to keep accurate records and provide beneficiaries with accounts upon request.
- Duty to preserve the estate – They must safeguard estate assets and act prudently in managing them.
Breach of these duties can lead to personal liability.
What Are the Consequences for an Executor Who Fails to Follow the Will?
If an executor fails in their duties, there can be serious consequences. Depending on the nature and severity of the issue, possible outcomes include:
- Removal as Executor
Beneficiaries can apply to the court to have an executor removed. This may be appropriate where the executor is:
- Neglecting their duties
- Acting dishonestly
- Causing unreasonable delays
- Failing to communicate or account for their actions
The court has the power to appoint a replacement executor or administrator in their place.
- Personal Liability
Executors can be held personally liable for losses to the estate caused by their actions or omissions. This includes:
- Paying beneficiaries the wrong amount
- Selling property below market value
- Failing to settle debts before distributing the estate
- Incurring unnecessary tax penalties
Where an executor has acted negligently or improperly, they may be ordered to repay money to the estate out of their own pocket.
- Legal Claims and Litigation
In serious cases, beneficiaries or other interested parties may take legal action against the executor. This could involve:
- A claim for breach of fiduciary duty
- A request for an account of the executor’s dealings
- A claim for damages or compensation
- An injunction to prevent further harm
Disputes of this kind are typically heard in the Chancery Division of the High Court and can be both costly and time-consuming. However, in many cases, they are necessary to protect the interests of the estate and beneficiaries.
- Reversal of Transactions
If an executor has improperly distributed assets or made unauthorised transactions, the court may order that those actions be reversed. This could include:
- Reclaiming overpaid distributions
- Returning misappropriated property
- Rectifying the estate accounts
Such remedies are not always straightforward, particularly if funds have already been spent or transferred to third parties.
What Can Beneficiaries Do?
If you are a beneficiary and suspect that an executor is not fulfilling their duties or is failing to follow the will, you have several options:
- Raise Concerns Informally
It is often best to start with an informal approach. Contact the executor and ask for clarification or an update. It may be that the delays or concerns are due to understandable complications rather than misconduct.
- Request an Estate Account
Beneficiaries are entitled to see a copy of the estate accounts, which should detail all income, expenses, and distributions. If the executor refuses to provide this, it may indicate poor administration or concealment of wrongdoing.
- Instruct a Solicitor
If informal steps do not resolve the issue, you may wish to seek legal advice. A solicitor can:
- Write to the executor on your behalf
- Request formal disclosure of estate information
- Help mediate or negotiate a resolution
- Advise on your rights and possible court action
- Apply to Court
Where serious misconduct has occurred, beneficiaries can apply to the court for:
- The removal or substitution of the executor
- An order compelling the executor to carry out their duties
- An order for compensation or restitution
These are serious legal steps, but may be necessary to protect the estate and ensure that the will is properly followed.
Preventing Issues in the First Place
Many of these issues can be avoided by careful planning and proper drafting of the will. When making a will:
- Appoint executors who are trustworthy, capable and likely to cooperate
- Consider appointing a professional executor, especially for large or complex estates
- Ensure the will is clearly worded and kept up to date
- Leave a letter of wishes to explain any potentially contentious decisions
At Blackstone Solicitors, we offer a full will-writing and estate planning service, helping clients avoid future disputes and ensure their wishes are carried out effectively.
How Blackstone Solicitors Can Help
We regularly assist both executors and beneficiaries in matters relating to estate administration. Whether you are:
- An executor unsure of your duties
- A beneficiary concerned about how an estate is being handled
- Involved in a dispute over a will
- Seeking to remove or replace an executor
Our experienced team can offer practical, strategic advice and representation. We work across England and Wales and have a proven track record in both non-contentious probate and contentious probate litigation.
To read more about our services, please visit:
https://blackstonesolicitorsltd.co.uk/services-for-you/probate/
Final Thoughts
Executors play a critical role in ensuring that a person’s final wishes are respected and legally implemented. When they fail in this duty — whether through error, neglect, or deliberate misconduct — it can have serious consequences for beneficiaries and the integrity of the estate.
If you are facing difficulties with an executor, don’t hesitate to seek legal advice. At Blackstone Solicitors, we are here to help you protect your rights, uphold the terms of the will, and ensure that the estate is handled with care, fairness, and professionalism.
To read more about our services, please visit:
https://blackstonesolicitorsltd.co.uk/services-for-you/probate/
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of probate. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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