I have a client who has submitted IHT returns, submitted and application for probate (not granted yet). The estate is now in dispute for a number of reasons and as part of the agreement for settlement by client has agreed to cease acting as an executor. The incoming executor will have to re-submit the grant application.
What would you suggest is the best way to have her retire from her position given that she has intermeddled.
No court proceedings have been issued.
My understanding is there are only two ways for an executor who has intermeddled but not yet taken out a grant to retire. One is for them to apply to be passed over under s.116 SCA 1981. The other is to issue a citation under NCPR r.47 calling on the intermeddling executor to show cause why he should not be ordered to take a grant. The citation can only be issued if at least 6 months have passed from the deceased’s death. Both of these are only relevant before a grant is issued, so you will need to get your client’s probate application withdrawn before the grant is issued. The citation is the more commonly used route. The route of passing over the executor is only necessary where the there is reason to believe the intermeddling executor would respond to the citation by choosing to take up the grant and then improperly administering the estate.
Once the grant has been issued, a PR cannot retire. Instead, s.50 AJA may be used as a way for the PR to retire where he and the beneficiaries want him to be replaced and consent orders for this are common but are still subject to the court’s discretion. A new grantee can be substituted in his place. Alternatively, one can apply to the registry to have the grant withdrawn under NCPR r.41.
Yours the ever faithful Legal Beagle
Thank you, this is extremely helpful.