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Removing, Appointing or Substituting a Personal Representative – Contentious Probate

Is the Executor or Administrator of an estate failing to fulfil their obligations under a will or intestacy?

Removing a personal representative can be a relatively straight-forward process. If they wish to renounce their duties, this can be done by signing a deed of renunciation, before they have ‘intermeddled’ in dealing with the estate.

However, removing a personal representative that does not wish to be removed can be troublesome. As they will have control of the estate once the Grant/Letters of Administration have been given, the beneficiaries may be concerned about what they will actually do with the assets. While the personal representatives are under oath to distribute the assets along the terms of the will or the rules of intestacy, their intention may be different.

A claim can be made through Section 116 of the Senior Courts Act 1981, or Section 50 of the Administration of Justice Act 1985, through an application to the High Court.

The Section 116 application is used before the Probate Registry has given a Grant of Probate or Letters of Administration. It allows the court to limit any grant in any way it thinks fit, if it chooses to exercise its discretion. This may be done where it appears ‘necessary or expedient’ to appoint someone other than who is entitled to act as personal representative.

Alternatively, the Section 50 application can be used after a grant has been issued. Either a beneficiary or an existing personal representative can bring a claim.

The court has the power, under this section, to appoint a person to act as a personal representative, in place of the existing personal representative. In deciding whether to use this power, the court considers the ‘welfare of the beneficiaries’, and whether it would be in their best interests if a new personal representative was appointed.

Contentious probate and other litigation matters can be complex and stressful. If you require advice or would simply like to talk to someone about an issue you are having with a personal representative, please contact James Allum or our Private Client department at hello@cookco.co.uk or telephone 0117 317 9719.

James Allum

James Allum

Paralegal Private Client

James works in our Private Client Department as a Paralegal. He has a range of experience in these matters, especially those involving Wills, administering estates and Power of Attorneys.

Read more about James

Contact NRG Law

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77-81 Alma Road
Bristol BS8 2DP

+44 (0) 117 317 9719
+44 (0) 117 317 9720

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