Co-Executor Refusing to Act Before Probate
Establish the position before escalating
This guide concerns an executor who has not proved. If the inactive executor is already named as a proving executor on an issued Grant, use the post-Grant guide. Different rules apply.
Check the latest will, any substitute appointment, Registry position and what the executor has actually done. Silence may reflect incapacity or another genuine impediment rather than deliberate obstruction.
Four possible routes
- Agreement: make a focused written request for the application step or document needed, with a reasonable response date. Ask for any genuine objection or impediment and record previous attempts and costs of delay.
- Power reserved: willing executors may be able to apply while another retains the ability to apply later. Check the notice and application requirements; it is not renunciation.
- Renunciation: an executor who does not wish to act may use the required formal document, currently PA15. An informal statement is insufficient. Intermeddling or acceptance of office may affect availability and needs advice.
- Citation: if the application still cannot progress, assess the appropriate formal Registry route, entitlement and possible order. A citation is not simply a forceful letter and should not be automatic.
Renouncing the executor’s office does not, by itself, remove a separate right to inherit. None of these options should be selected without checking the actual procedural position.
Documents and facts to locate if you have them
You do not need all of these before enquiring. If documents are unavailable or being withheld, mention that in your enquiry.
- The latest will, codicils, substitute-executor provisions and any Registry or Grant information.
- Any renunciation, power-reserved notice and evidence of the executor’s involvement with estate assets.
- The precise document or decision withheld, dated requests, responses and delivery evidence.
- Property, insurance or tax deadlines, ongoing costs and any caveat, validity dispute or capacity concern.
Power reserved, renunciation and incapacity
An executor with power reserved is not initially a proving executor under the existing Grant but retains the ability to apply for a further Grant. NCPR rule 27 generally requires notice of the application, subject to exceptions or a direction dispensing with notice. It prescribes no particular notice form. Keep evidence of notice and check current application requirements.
Power reserved may not solve an active will-validity or entitlement dispute, or missing application material. Renunciation requires the proper formalities; what amounts to intermeddling or acceptance of office must be assessed before assuming it remains available.
Where an executor may lack capacity, check substitute appointments and obtain advice on the appropriate evidence and application. Depending on the facts, an attorney, deputy or another entitled person may be relevant. Government guidance identifies PA14 and related routes; incapacity should not be treated as a refusal to cooperate.
Citation routes, service and possible outcomes
NCPR rule 47 provides distinct routes:
- Rule 47(1): someone entitled to a Grant if the cited person renounced may cite them to accept or refuse a Grant.
- Rule 47(2): proving executors may cite an executor whose power was reserved. This is a later route after the first Grant, distinct from refusal by an executor who has already proved.
- Rule 47(3): in defined circumstances, an interested person may cite an intermeddling executor to show why they should not be ordered to take a Grant. It is available only after six months from death and not while will-validity proceedings are pending.
The process may involve evidence, Registry issue, personal service, proof of service and a further application on default. A citation ordinarily requires an Appearance within eight days after service; current service and procedural requirements must be checked before relying on default.
Section 5 of the Administration of Estates Act 1925 addresses an executor cited to take probate who does not appear. The next step depends on the citation and order sought. Non-appearance does not automatically give every applicant a Grant or extinguish a beneficial entitlement. Rule 47(1) permits an application for a Grant to the citor; rule 47(2) concerns a note on the existing Grant. Rule 47(3) is different again.
An Appearance followed by failure to progress may require a further application or summons. A citation can narrow the issue but does not guarantee immediate administration. Check entitlement, service, alternative routes, cost and any existing contentious proceedings before proceeding.
When individual advice is needed
Seek advice where intermeddling, renunciation, capacity, entitlement or the will is disputed; a citation is contemplated; or a caveat or competing application prevents progress. Preserve assets and record the reasons for escalation. Issued proceedings, urgent relief and immediate asset or deadline risks require prompt appropriate advice, rather than waiting for Stage 01.
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Stage 01: Factual Audit & Action Plan
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We review the executor and Grant position, correspondence, information gaps and available non-court options before recommending the smallest appropriate next step.
- Review of up to 20 selected pages of core correspondence and documents.
- A focused 30-minute consultation directly with Justin Patten.
- A two-page written Action Plan identifying the position, risks and proportionate next steps.
Normally delivered within three working days after the consultation and receipt of all required documents. The £400 fee is credited once against the first qualifying milestone instructed within 14 days; see pricing and scope terms.
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Official sources and further reading
General information for England and Wales, not advice on an individual estate. The appropriate route depends on the documents, procedural position and circumstances.
About the author: Justin Patten, Solicitor, principal of Human Law and author of The Out-of-Court Executor. About Justin Patten →