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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10398
Experience:  I have been practising for 30 years.
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If I have been main executor estate two years and due to

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If I have been main executor for an estate for nearly two years and due to issues is still not settled can I pass the responsibility onto the the previously non passive other elector.

No one can be forced to act as an executor and you are quite entitled to refuse the appointment before doing anything. However if you have already dealt with part of the estate, (called intermeddling), then you can not resign without a court order to allow you to resign and an order appointing a replacement. It is not simply a case of passing the whole burden onto the other executor who remains or someone else who is willing to take over. It’s unlikely that the court would let you resign because you are fed up of doing it and there would need to be a legitimate reason such as ill-health or that of a family member or a family emergency or death.

If you are suggesting a replacement executor, then the replacement executor would need to have the approval of the beneficiaries and if replacement executor is not acceptable, then the court would usually appoint a solicitor.

It is not a straightforward process. It’s very easy at the outset but as soon as you start to deal with the estate, then getting out of it becomes very difficult.

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Customer: replied 1 year ago.
Thanks your response was expected. If and as I was sectioned under section 2 after my partner committed suicide would this make any difference

It does make a difference because it means that you are no longer capable but it still needs a court application to replace you.

Customer: replied 1 year ago.
Do I need a solicitor to initate this court process and how long will it take to resolve. Forgot to mention that I am currently living in the house that is the only existing asset of the estate.

If you are living in the house which is the only asset of the estate and there are other beneficiaries, then you are liable for an occupational rent, to be paid to the estate. If for example, there are 4 beneficiaries of which you are one, then you would pay three quarters of the occupational rent at the market rate back into the estate for distribution to the others.

That rent would obviously not be distributed to you.

Unless you have experience of court applications, you’re probably better getting it done by a solicitor although there is no legal reason why you cannot make the application yourself. The timescale depends on the court loading but you are certainly into weeks and months and not a few days.

Customer: replied 1 year ago.
Thanks. I was told by family that because I have and am solely paying a bank loan re the freehold of the property this is in lieu of rent.

There is no problem with that if the others accept that.

Best wishes

Customer: replied 1 year ago.
Sorry reading this back I have used the wrong terms in the original message. I should have said passive executor. Does this still have to go through the courts? He is also named as executor but never wanted to actively take part although was named during probate.

Yes, the same applies. He doesn’t want to deal with it and you don’t want to deal with it and therefore, someone else must be appointed to do the actual dealing.

What you could do is actually both agree to pass the whole thing onto solicitors in that way, the solicitors deal with it and the estate pays the cost. There is no reason for you to actually step down.