If you’re dealing with an executor who isn’t administering an estate properly, you may be wondering whether it’s actually possible to remove them. The short answer is yes – but in Scotland, removing an executor is not something the courts do lightly. There’s a genuine legal process behind it, a fairly high bar to clear, and, in most cases, some patience required.
This matters because executries can drag on for months, sometimes years, when the person in charge isn’t pulling their weight, and beneficiaries are often left in the dark about their options. At Family Lawyers Glasgow, we speak to clients in exactly this position on a fairly regular basis – frustrated, unsure whether they have grounds to act, and unsure of the process even if they do. If any of this sounds familiar, it’s worth speaking to a solicitor early rather than waiting for the situation to get worse.
Why Would Someone Want to Remove an Executor?
An executor’s job is to gather in the deceased’s assets, settle debts and tax, and then distribute what’s left according to the will or the rules of intestacy. It’s a role that carries real responsibility, and for most people, it’s their first experience of anything like it.
In many cases, problems arise not because the executor is dishonest, but because they’re overwhelmed, disorganised, or simply unwilling to communicate. Other times, though, the concerns are more serious – an executor who is mismanaging funds, refusing to provide accounts, or acting with a clear conflict of interest between their own position and their duty to the beneficiaries. Where two or more executors have been appointed, and they can’t agree, an executry can grind to a complete standstill, with each side blaming the other for the delay.
Whatever the underlying issue, it’s worth remembering that an executor is, in legal terms, treated as a trustee. That means they owe fiduciary duties to the beneficiaries and must act in their best interests rather than their own. This distinction matters, because it’s largely the law of trustee removal – rather than any bespoke executor-specific rule – that has historically governed whether and how an executor can be removed in Scotland.
What Does the Law Actually Say?
Historically, the main statutory route sat in section 23 of the Trusts (Scotland) Act 1921, which allowed an interested party to apply to the sheriff court or the Court of Session to remove a trustee, and by extension an executor. But this power only applied in fairly limited circumstances: where the executor was incapable of acting by reason of physical or mental disability, had been continuously absent from the UK for six months, or had disappeared for the same period. Useful in some cases, but not much help if the real problem is an executor who is simply obstructive, slow, or difficult to deal with.
Where those specific grounds didn’t apply, the only other option was to petition the Court of Session to exercise its nobile officium – an equitable power that lets the court step in where no other legal remedy exists. This is not something used often, and for good reason. Case law has made clear that poor performance, slow administration, or ordinary disagreements between executors and beneficiaries won’t be enough. Courts have generally required something closer to a genuine breach of duty, such as an outright refusal to carry out their duties or an unresolvable conflict of interest, before they’ll grant removal.
Changes to the Law: What’s Different Now?
For a long time, solicitors in this area would tell clients that petitions for removal were rare, expensive, and far from guaranteed to succeed. That’s beginning to shift. The Trusts and Succession (Scotland) Act 2024 has introduced a more modern, more accessible framework for dealing with trustees and executors who aren’t fit to continue, replacing much of the old 1921 Act regime.
Under the updated law, grounds for removal include situations where an executor is unfit to carry out their duties, is acting inconsistently with their fiduciary duty, has neglected their responsibilities, or is otherwise incapable of properly fulfilling the role. Applications under the new provisions are generally made to the sheriff court where the deceased was domiciled, rather than requiring an Outer House petition in every case. It’s still early days for how this will play out in practice, but for many families the intention is a welcome one: a route to removal that doesn’t automatically mean the expense and formality of the Court of Session.
That said, if you believe the law has moved on far enough to make removal straightforward, it’s worth tempering that expectation. Courts are still cautious about interfering with the deceased’s own choice of executor, and the discretion involved means outcomes can vary depending on the facts. This is exactly the kind of area where legal advice early on can save considerable time, cost and stress later.
Do You Have to Go to Court?
Not always, and this is often the first thing we discuss with clients. If an executor is willing to resign voluntarily, the matter can often be resolved administratively, without the need for court action at all. Sometimes a frank conversation – or a solicitor’s letter setting out the concerns clearly – is enough to prompt a resignation, particularly where the executor themselves is finding the role stressful or unwanted.
Where informal resolution isn’t possible, mediation or the appointment of an additional executor to help break a deadlock can sometimes avoid the need for court action altogether. Court proceedings should generally be seen as a last resort: they take time, they cost money, and there’s no guarantee of success even where the concerns are genuine. An interested party bringing a petition needs to show real evidence – not just frustration or a breakdown in trust – that the executor’s continued involvement would prejudice or obstruct the proper administration of the estate.
What Happens If Court Action Is Necessary?
If informal routes have been exhausted and removal genuinely is the only sensible option, the process will usually involve a petition setting out the grounds relied upon, whether under the newer statutory provisions or, in more limited cases, through the nobile officium. The court will look closely at the evidence – this can include how the executor has behaved, whether they’ve provided accounts, whether debts and beneficiaries have been dealt with appropriately, and whether there’s a genuine conflict of interest at play.
It’s worth being realistic here: the court is only likely to grant removal where it’s satisfied that no less drastic option would resolve matters. Simply disliking how an executor is doing their job, or wanting things to move faster, is unlikely to be sufficient on its own. This is one of the reasons it helps enormously to have someone experienced guide you through what evidence you’ll actually need, and whether your situation genuinely meets the threshold the court expects.
Practical Considerations for Beneficiaries and Co-Executors
If you’re a beneficiary who is worried about how an estate is being administered, start by trying to establish exactly what the concern is. Is it a lack of communication? Missed deadlines? Something that looks like mismanagement of funds? These distinctions matter, because they shape what options are realistically available to you.
Where you’re a co-executor and the relationship with your fellow executor has broken down, it’s worth thinking carefully about whether the issue is a genuine legal ground for removal, or a personality clash that might be better resolved through mediation. Not every disagreement warrants formal action, and jumping straight to court can sometimes make an already difficult family situation worse.
For most people in this position, the process feels unfamiliar and, frankly, a little intimidating. That’s understandable – estate administration disputes tend to arise at an already difficult time, often not long after losing a family member. It doesn’t need to feel overwhelming, though. With the right guidance, most concerns around an executor’s conduct can be addressed sensibly, whether that ends up meaning a quiet resolution, a resignation, or, in the more limited circumstances where it’s genuinely warranted, an application to the court.
Getting the Right Advice
Every executry is different, and whether removal is realistic in your case will depend heavily on the specific facts. If you’re dealing with an executor who won’t communicate, won’t provide information, or appears to be acting against the interests of the beneficiaries, it’s worth getting tailored legal advice before deciding what to do next.
At Family Lawyers Glasgow, our team at Complete Clarity Solicitors has experience helping clients work through exactly these kinds of executry disputes – from an initial conversation about your options through to court action where it’s genuinely necessary. If you’d like to talk through your situation, get in touch, and we can help you understand where you stand and what a sensible next step might look like.
