Beneficiaries can bring claims against executors for breach of fiduciary duty, including self-dealing, delay, or misappropriation. In 2026, the High Court increasingly uses Section 50 applications to remove executors who fail to provide transparent estate accounts or cause “unreasonable” administration delays.
Read our complete guide on contesting a will for lack of capacity.
The Fiduciary Duty: Why Executors are Personally Liable
An executor’s role is not a “family favor”; it is a formal fiduciary position. This means they are legally required to act solely in the best interests of the beneficiaries. In 2026, the courts have become significantly more aggressive in holding executors personally liable for losses.
If an executor’s negligence causes the estate to lose value—for example, by failing to sell a property before a market dip or allowing insurance to lapse—they can be sued for Devastavit (literally “he has wasted”). This means the executor must pay the difference out of their own pocket.
Recognizing Common Breaches in 2026
Disputes typically fall into three categories:
- The “Silent” Executor: Failing to provide estate accounts or ignoring beneficiary enquiries.
- Self-Dealing: Buying estate assets (like a family car or house) at an undervalue for themselves.
- The Delay Trap: Sitting on funds for years without distributing them, often due to personal grudges or incompetence.
The “Summons for Account and Inquiry”
In 2026, the first line of defense against a non-transparent executor is a Summons for Account and Inquiry. This is a court order that forces the executor to produce a full, line-by-line breakdown of every penny that has entered and left the estate.
If the executor cannot justify a payment or shows “missing” funds, the burden of proof shifts to them. If they fail to provide an adequate explanation, the court can order them to personally reimburse the estate with interest.
Removing an Executor: The Section 50 Application
If the relationship between the executor and beneficiaries has broken down completely, a solicitor can apply for their removal under Section 50 of the Administration of Justice Act 1985.
The 2026 Standard: The High Court no longer requires proof of “criminality” to remove an executor. Under current precedents, mere “friction and hostility” that prevents the smooth administration of the estate is enough to justify removal.
The “Intermeddling” Trap: Liability Before Probate
A common mistake occurs when a family member begins distributing assets or paying debts before the Grant of Probate is issued. This is legally known as intermeddling. In 2026, the courts view intermeddling as an assumption of full executor liability without the legal protection of the court’s authority. If you intermeddle and subsequently make an error—such as paying a lower-priority debt before a tax bill—you can be held personally liable for the shortfall.
Solicitors resolve these disputes by stepping in to regularize the estate’s position, but for the intermeddler, the “penalty” is often losing the right to renounce their role, effectively trapping them in a high-liability position they may no longer want.
Statutory Interest: The Penalty for Sitting on Funds
One of the most powerful tools for beneficiaries in 2026 is the claim for statutory interest. If an executor fails to distribute a pecuniary legacy (a specific cash amount) within the “Executor’s Year,” the law dictates that the legacy begins accruing interest at the court-mandated rate. In a higher-interest-rate environment, this can significantly diminish the “residue” of the estate left for others.
If the delay was unreasonable, the court may order that this interest be paid by the executor personally rather than from the estate’s funds. This creates a massive financial incentive for executors to move quickly and provides solicitors with a clear “stick” to force a distribution when an executor is dragging their feet.
1. The Letter of Claim
Pre-Action Protocol
A formal notice giving the executor a final chance to rectify the breach or step down voluntarily to avoid court costs.
2. Issuing the Application
High Court (Chancery Division)
Filing a Section 50 claim supported by witness statements detailing the specific mismanagement or breakdown in communication.
3. Proposing a Replacement
The ‘S.50 Substitute’
The court will not leave an estate “leaderless.” You must nominate a professional executor or an independent solicitor to take over.
4. The Removal Order
Transfer of Assets
The court issues an order stripping the old executor of their powers and transferring the Grant of Probate to the new representative.
Claims for “Interest and Lost Opportunity”
A growing trend in 2026 litigation involves claiming for “lost opportunity.” If an executor holds £500,000 in a zero-interest account for two years while the beneficiaries could have invested it, the executor may be ordered to pay equitable interest. This effectively forces the executor to pay the beneficiaries what the money would have earned if they had distributed it on time.
Who Pays the Legal Fees?
This is where executors take the biggest risk. While executors usually have their costs covered by the estate, this right is lost if they are found to have acted unreasonably. In 2026, if an executor is removed by the court, they are almost always ordered to pay the beneficiaries’ legal costs personally.
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FAQs
1. Can I sue an executor personally?
Yes. Under the doctrine of Devastavit, if an executor wastes estate assets or fails to protect them (e.g., failing to insure a property that later burns down), they are personally liable for the loss.
2. How do I remove a silent executor?
If they ignore your requests for information for more than 12 months (the “Executor’s Year”), you can apply to the High Court under Section 50 to have them replaced.
3. What is the time limit for a claim against an executor?
Claims for “Account and Inquiry” generally have no time limit, but claims for breach of trust or negligence usually must be brought within 6 years of the breach.
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