What happens if an executor named in a Will dies or loses capacity?
Your passing will always be a difficult period for your loved ones, considering they will have to learn to cope with the grief while dealing with practical matters such as planning your funeral and notifying your asset holders. However, this period can become even more challenging when the Executor, who has the authority to administer the estate, is unable to fulfil their responsibilities.
Being the Executor of a Will entails a great deal of responsibility and a high standard of care when administering and safeguarding the estate of the deceased. But what happens if the named Executor of a Will predeceases or loses mental capacity and can no longer carry out their required duties?
What happens if an executor dies or loses mental capacity before the testator has died?
If an Executor predeceases or loses mental capacity while the owner of the Will, also known as the Testator, is still living, and no other co-Executors or replacement Executors have been appointed in the Will, the Testator should review their Will and amend it to name a new Executor. A Codicil, which is a supplemental document to a Will, could potentially be used to make this amendment.
What happens if an executor dies after the testator has died?
If there are multiple named Executors and one of them passes away before the Grant of Probate has been obtained, the surviving Executors will be responsible for administering the estate. However, if the Executor who died was the sole Executor, then the Non-Contentious Probate Rules 1987 (NCPR 1987) will become applicable. Depending on the specific circumstances, the NCPR 1987 sets out who is responsible for administering the estate.
According to Rule 20 of the NCPR 1987, the order of priority of individuals entitled to apply for probate and administer the estate if the Executor of a Will has died are as follows:
- 1. A trustee of the ‘residue estate’, which is the remaining assets in the estate after all bequests, debts and taxes have been settled.
- 2. A beneficiary of the ‘residue estate’, also known as the residuary beneficiary.
- 3. A personal representative of any residuary beneficiary.
- 4. A legatee or a creditor of the deceased.
- 5. A personal representative of a legatee or creditor of the deceased.
If the sole Executor dies while the estate is still in administration and the assets are being encashed before final distribution to the beneficiaries, the beneficiaries will then need to consult the deceased Executor’s Will in order to continue administering the estate. The Executors appointed in the deceased Executor’s Will will have the duty to administer both estates, owing to the ‘chain of representation’.
Nonetheless if an estate is at the administration stage, this indicates that the Executor has already obtained the Grant of Probate. As a result, the new Executor(s) must revoke the initial Grant of Probate and submit a new application to be granted authority to administer the estate.
In the event that the deceased Executor did not have a Will, the beneficiaries will need to refer to the order of priority set out in Rule 20 of the NCPR 1987.
What happens if an executor loses mental capacity after the testator has died?
Where there are multiple Executors named in the Will, and one has become incapacitated, the Executors who still have mental capacity will have to apply for a Grant of Probate with “power reserved” to the incapacitated Executor. In essence, this eliminates the requirement for consent from all Executors in order to execute the Will’s provisions and guarantees that no single Executor can act without the other’s express consent.
If the Executor who lost mental capacity was the sole Executor and there are no substitute Executors named in the Will, then it will be necessary for someone else to act in place of the incapacitated Executor. While they are not obligated to, if the incapacitated Executor has appointed an Attorney under a Lasting Power of Attorney or Enduring Power of Attorney, the Attorney can choose to act as the Personal Representative of the Executor and fulfil their responsibilities to administer the estate.
An Attorney may apply for a Grant of Letters of Administration (with Will annexed) under Rule 35 of the NCPR 1987. This will enable them to manage the estate in the same manner as a Grant of Probate. In order for an Attorney to apply for probate, they must make sure that all other pertinent parties have been ‘cleared off’, meaning there is no one else entitled to administer the estate per Rule 20 NCPR 1987.
A new Personal Representative must be established in accordance with the NCPR 1987 if a sole Executor loses capacity after the Grant of Probate has been issued. The original Grant will not be revoked but the Personal Representative will have to apply for a new Grant of Probate with power reserved to the incapacitated Executor. This will allow them to take over the responsibilities of administrating the estate.
Our advice
As it is impossible to anticipate what might happen in the future, it is usually advised to appoint more than one Executor or at least appoint replacement Executor(s) in case your original Executor is unable to carry out their duties.
When appointing Executors, it is crucial to ensure that they are in good health, both physically and mentally and that they are capable of handling the duties of managing your estate. To make sure they are willing to accept the responsibility and fully comprehend what is expected from them as Executors, you should have a conversation with them beforehand.
You can appoint up to four Executors in your Will but if you do so, it could lead to complications in administering your estate if they are hard to reach or cannot jointly agree on matters pertaining to your estate. Thus, you should also ensure that your Executors are able to work together well as they will need to jointly make and provide their approvals for any decisions made.
Depending on your circumstances, you may instead want to consider appointing professional Executors, typically Partners of a solicitors’ Firm, to maintain continuity and minimise any issues brought on by Executors predeceasing or losing mental capacity.
The Succession & Tax team at Blake Morgan are a team of specialists with vast backgrounds in Will drafting and estate administration who are able to provide expert legal advice on the appointment of suitable Executors.
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