What to do when the executor will not act

Are you experiencing a very slow executor, one who never actually administers the estate?

Executors who cannot or will not administer the estate are not uncommon. Sometimes years can go by without the executor having sought an appointment (probate), or having collected the assets (for instance, sold properties), or having filed tax returns or distributed the estate to the beneficiaries.

Sometimes the reason for the executor being so slow – in effect, for them deliberately failing to act – is when they have a conflict of interest. For instance, if the executor is living in the house of the deceased, the executor has an incentive not to sell it and distribute the proceeds?

This can be extremely frustrating for beneficiaries, especially family members.

What can be done? In our experience, the most important thing to do is to move beyond ‘blame’ and ‘the reasons for the failures of the executor’ and the ‘promises and execuses’, and to take what we call a ‘disciplined and clinical’ approach to getting the issues resolved.

Sometimes the executor can be prodded into action with a stern letter from a lawyer acting for a beneficiary. However, if this does not work, then we strongly recommend against a slow or drawn out ‘game of ping pong’ with long exchange of letters, threats, accusations and threats from the beneficiary who wants their money, and excuses, promises, delays, stalling, and obfuscation from the executor.

We believe that the best bet is to just start moving the executor firmly and purposefully towards a court date. Usually, this begins with a straightforward application for an Order for a Passing of Accounts. There are many possible reasons for not administering an estate properly, but very few of them actually excuse the executor. If the executor is truly incapable of acting, then the executor should resign and be replaced.

The beneficiaries are entitled to a passing of accounts, and the courts rarely are terribly accommodating of executors who fail to honour this obligation. So if an executor is not administering an estate, ‘get moving’ and start the process of applying for a Court order compelling the executor to act.