# Removing an executor from a will



## emmt (23 Feb 2016)

Hi there. I'll try and make this query as succinct as I can. Father died in 2006 and we just found out that he left money in accounts that we werent aware of that havent gone through probate. We found this out when we made an appointment with his solicitor to discuss mortgaging the family home as we are in dire straits in terms of getting money to look after our mother who has dementia and still lives at home with pretty much 24 hour care which is expensive.

Mum did have an account of her own and a few years back she got one of her offspring onto as a joint account holder. Turned out badly. Unfortunately, this member of the family cleaned out the account over a period of a few years and has now become incommunicado and wont contact any of the family. The rest of us are subsidizing Mums care.

The problem with these new accounts of Dads that have appeared is that the person who cleaned out Mums account is the executor of Dads will and we cant get in contact with her. She also has say over where the money goes once it is available. It was highlighted in 2010 that money had gone missing from Mums account (we know the executor took it) and at that stage, I thought that the hemorrhaging of the account would stop at that stage but it just got worse. We can even see from the bank statements where she did online transfers from Mums account to her own! Unfortunately this person had full legal rights to the account but what they did was totally immoral in my opinion.

One last thing - the solicitor with responsibility for Dads probate also acts as the solicitor for the executor. is this a potential conflict of interest.

What I'd like to do is twofold
- change solicitors
- get the executor changed to someone who is acceptable to all the rest of us siblings.

I know this is a complicated situation that will probably need a sit down with a neutral legal person but my question is this - do I have a leg to stand on and is it worth my while going down the legal route or are all the cards in the executors hands?

Thanks in advance for any advice you can give me. We need to get this money ring fenced for Mums care but are in a precarious position at the moment and don't really know how to proceed

I just see some advice from Seagull saying "You can apply to have the executor removed if they can be shown to not be performing their duties. I don't know how long the executor can delay before sanctions are brought by the probate office." Its been 10 years since Dad died so I suppose that would constiture not performing duties.


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## Jim Stafford (23 Feb 2016)

Yes, you could have the executor removed.  But the easiest, least costly approach, is to ask the person to resign (i.e. to ""renounce"), and allow for someone else to be appointed.

If the person will not renounce, the issue arises as to who can make the application to the High Court.  If the only beneficiary named in the will was your mother, then only she can make the application.  However, as she has dementia, she would unable to make such an application.  If she had given Power of Attorney to someone, that someone might be able to make such an application (provided the Powers were given.)  If your mother had granted no POA, then you would need to make her a Ward of Court to have the application progressed.

You could not directly have the solicitor removed: only an executor can do that. The solicitor is acting for the Executor.  Obviously, if the Executor was removed, then the new Executor could appoint their own solicitor.

I would suggest that you convene a "family conference" to discuss the entire circumstances and persuade the executor to either act properly or renounce.

I would also suggest that there might be 2 sides to the story: the monies that they took from your mother's account may have been validly utilised on medical bills etc.

Jim Stafford


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## Branz (23 Feb 2016)

If it is "deemed" that the executor has "intermeddled" with the estate in her role as Executor then she may not be able to renounce.

bearing in mind Jim's point of there being two sides to the story, and then the facts!, my layman's understanding of the intermeddling provision is to stop someone, in their role as executor, "cleaning out the estate " and then walking away with no accountability.
Re


emmt said:


> money in accounts that we werent aware of that havent gone through probate



How exactly did this arise? 

You need to get got the bottom of this as well?

Is there a POA?
Is your mother  a ward of court?


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## emmt (23 Feb 2016)

Hi Jim..thanks for the prompt reply. We know for a fact that the monies weren't validly used. The executor doesn't play ANY part in looking after my mother and hasn't for a long time. She has no idea what's going on in her life. The rest of the family were paying bills directly from the original account using a cheque book. We got bank statements issued for last 6 years and can see multiple payments to car insurance, property tax etc that weren't for Mum's benefit. A large chunk (we're talking 5 figures here) went on a U.S. wedding for the eldest nephew and that information came from the horses mouth...We've since opened a new account and moved pension into this and have 2 offspring on as named account holders. But that isnt enough to keep her considering the care she needs.

So the best route for the moment is to keep trying to get in contact with the executor - which we've tried to do constantly for the last few months

Mum is the only beneficiary named in the will and if there was a POA granted, Id be afraid it might have been to the executor. You don't think things like this can happen and give a person the benefit of the doubt until you start digging.

Branz - we thought that the only £££ Dad had was in his local bank account which mum got in 2006/7. It was only when we went as a family to Dads solicitor last Monday that we were told that there were other bank accounts we weren't aware of, sitting there since 2006. (Even though we had made an appointment with solicitor weeks in advance, he was called away of business and his assistant dealt with us.) I'm not of a legal background so not sure how things should have been progressed between solicitor and executor following my Dad's passing.  If we hadnt met with the solicitor, I assume money could have sat there for many more years.

Also, my mother is not a ward of court. To be honest, all we have been doing since she developed dementia, is looking after her at the weekends, paying for care during the week and trying to keep her at home as long as possible. I guess we took our eye off the ball in respect of the £££ for a while.


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## elcato (23 Feb 2016)

Am I right in saying the executor has not touched these bank accounts that your father had ? Why does he not proceed to do his job and transfer these to your mother now ?


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## emmt (23 Feb 2016)

Correct - it looks like executor has not touched these bank accounts Dad has, solicitor's assistant said the funds weren't accessible as yet and would take up to a year and a half to sort out. Then the executor will have power over where money goes. We cant get in contact with executor despite numerous attempts at - calling to house, telephoning, emailing etc...so at our wits end with it. 



elcato said:


> Why does he not proceed to do his job and transfer these to your mother now ?


Cant answer that one but this is a person who spent money belonging to a parent for own purposes and then cut all communication with immediate siblings so who knows...


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## elcato (23 Feb 2016)

But surely an executor is there to oversee the job the solicitor does. Why did the solicitor not see that tese accounts were about and transfer them to the beneficery which I presume is your mother. Surely a solicitor doesn't just release the dosh and then tell the executor to do as they please ? Maybe I'm being naive here.


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## emmt (23 Feb 2016)

elcato said:


> But surely an executor is there to oversee the job the solicitor does


 Yes, but executor hasn't done the necessary on this occasion.



elcato said:


> Why did the solicitor not see that tese accounts were about and transfer them to the beneficery which I presume is your mother


 Didnt get talking to actual solicitor as mentioned above but assistant was surprised that this hadn't been dealt with sooner



elcato said:


> Surely a solicitor doesn't just release the dosh and then tell the executor to do as they please


 Correct, executor has to, in simple terms, get the ball rolling but I would have thought that the solicitor would/should have given her a nudge to remind her that this was outstanding.

Rest of family didn't know these accounts existed; didn't know that executor had work to do. Maybe executor didnt know either...I dont know as we cant get answers. We were just toodling along with what we thought was all the £££ Dad left, trying to make it last and look after Mum in the meantime.


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## elcato (23 Feb 2016)

Oh OK. Well hopefully you can now get the money transferred to your mother and take it from there. I'd try and avoid the executor till that has been done.


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## john luc (24 Feb 2016)

Put your concerns down on paper and write to the solicitor that way you will have no misunderstanding.


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## emmt (24 Feb 2016)

This is all happening in a small country setting so everyone knows who is involved which makes it harder. You'd rather not come out and blame anyone but it has gone too far at this stage. Apparently solicitor did contact executor 3mths after Dads death but nothing was done and none of the rest of the family had any inkling of work that needed to be done. It's a mess and it makes me sick with worry to think of it. Legally it seems like all the cards are in the executor's hands but I'll contact an independent solicitor and see what he says. But bearing in mind Jim's comments, I'm not sure much can be done except hope that the executor does the right thing...

Thanks all for your replies, much appreciated


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## john luc (24 Feb 2016)

Deffo on going for full legal advice on this. Compile your facts first and bring bank statements showing where money's are being taken for personal use.


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## Cervelo (24 Feb 2016)

Did the solicitor know about these accounts when he file for probate ??


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## emmt (25 Feb 2016)

Hi Cervelo, we're still unsure as to what the solicitors has done as we only got talking to his assistant. We have an appointment set up with the solicitor in 3 weeks time.


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## Cervelo (25 Feb 2016)

Not been smart here but why 3 weeks, are they flying back from the Cayman Islands,
From reading what you have posted I would recommend you start seeking other legal advise here because it sounds like there is an element of fraud on behalf of the executor and a solicitor who may or may not be involved but definitely seems not to have done their job in relation to probate and your mother.


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## emmt (26 Feb 2016)

Hi cervelo. ..3 weeks delay is because of family not solicitor.  We're based in Dublin,  I'm 38 weeks pregnant,  solicitor is in North west so tis hard to get a date that suits all unfortunately. A letter is going to go out to all members of the family detailing what's in dad's will so at least will be harder to hide if we all of us know what's there to be ring fenced for mums care!


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