'Rogue' executors on the rise: how to choose an executor when writing your will

A legal firm is advising those making a will to take care when appointing executors, following a rise in 'rogue' executors facing court action for mishandling estates.

Executors play a crucial role in ensuring the deceased person's wishes are honoured, but law firm Irwin Mitchell predicts that High Court cases involving mishandling of estates could reach levels not seen in a decade. 

Here, we explain the role of an executor and the factors contributing to the rise in rogue executors, and offer advice on how to appoint the right person.

What are the responsibilities of an executor?

Executors are responsible for carrying out your wishes as outlined in your will. They have a fiduciary duty to act in the best interests of the estate and its beneficiaries.  

Their role includes gathering and managing the estate’s assets, paying any debts and taxes, and distributing the remaining assets to the rightful beneficiaries.

Anybody can be your executor as long as they’re over the age of 18 (over 16 in Scotland).

If needed, they can seek professional help for probate services. 

• Find out more: how to make a will.

'Rogue' executors on the rise

Irwin Mitchell Solicitors has highlighted a concerning increase in executors being sued in the High Court in England and Wales. 

The firm said that 87 cases were filed in 2024, up from 72 in 2022, with the number of cases previously exceeding 100 in 2011, 2012, 2016 and 2017. 

While the current figures are still relatively low, the firm predicts the trend could continue, driven by factors such as complex family situations, higher estate values and lack of oversight.

Examples of rogue executor behaviour include:

• Refusal to pay out Executors may refuse to distribute assets to rightful beneficiaries due to personal disagreements or disapproval of the beneficiary’s choices.
• Commingling funds Executors mixing estate funds with their own or combining funds from multiple estates, leading to financial mismanagement.
• Misappropriation of property Executors transferring or registering estate property into their own name, breaching their fiduciary duty.
• Undisclosed loans Executors failing to disclose loans received from the deceased, leaving them unpaid and complicating the estate’s administration.

Find out more: probate solicitors explained.

What happens if an executor goes 'rogue'?

Irwin Mitchell said rogue executors can face serious consequences, including removal from office, repayment of misappropriated funds, personal liability for legal costs, and criminal charges in severe cases. 

Stephanie Kerr, a partner and specialist in will, trust and estate disputes at Irwin Mitchell, warns: 'Rogue executors can cause significant distress and financial loss to beneficiaries and it’s crucial to recognise the signs of misconduct, and take appropriate legal action to protect the estate and the interests of the beneficiaries.'

If you’re a beneficiary or co-executor, you can apply to remove an executor for serious misconduct, mismanagement or conflicts of interest.

If the executor isn’t fulfilling their role, you can make a claim. This could be if they’ve sold property at a low value, paid beneficiaries before settling debts or delayed distributing the estate. The court may also hold the executor personally responsible for any losses to the estate.

• Find out more: DIY probate – how to administer an estate.

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How to choose an executor when writing your will

When selecting an executor for your will, it’s important to consider a few key factors. Here are five questions to ask when choosing the right person:

1. Do you trust them?

It’s important to choose someone you trust to carry out your wishes. Many people opt for a spouse, partner or a trusted friend, but grown-up children can also be a good choice if they're able to handle the responsibilities.

• Find out more: what to put in your will.

2. Do you need more than one?

It’s a good idea to appoint at least one co-executor in case your first choice is unable to act. Having multiple executors ensures someone is always available to manage the estate and can help avoid delays. 

Two executors are usually sufficient, but you can appoint up to four.

• Find out more: how to make a will for free.

3. Do they have the time and skills?

Being an executor can be time-consuming, especially for complex estates. Ensure the person you choose has the time and ability to carry out the role. This includes tasks such as managing paperwork, settling debts and distributing assets.

• Find out more: will trusts explained.

4. Do you need a professional executor?

If your estate is complex or likely to involve family conflicts, you might want to consider appointing a professional, such as a solicitor. 

Charges can be fixed, or a percentage of your estate based on the amount of time spent administering your will. 

Watch out for companies that offer free or cheap will-writing services in exchange for being your executor. Fees can be extortionate and it can be difficult for beneficiaries to replace an executor after you die.

• Find out more: grant of probate explained.

5. Have you told them?

It’s essential to discuss the role with your chosen executor before naming them. This ensures that they’re willing to take on the responsibility, as being an executor can involve a considerable amount of work

According to Exizent’s 2024 Bereavement Index, 15% people were unaware they were named as executor until after the person’s death.