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  • Writer's pictureMiGem

What happens if an executor in your Will dies?

If the executor of an estate passes away, someone else will have to step in to take over their duties and complete the probate process. However, the answer of who will do so depends on the circumstances of the situation.


IF AN EXECUTOR DIES AFTER STARTING TO ADMINISTER THE ESTATE


Where an executor in a will survives the testator, obtains a grant of probate but then dies before completing the administration of the estate this creates a chain of representation.


IF THERE IS ANOTHER EXECUTOR


Simply, if one executor dies before completing the administration of the estate but there is another executor administering the estate, they can continue to do so.


For example: Toby appoints Kieron & Archie to be the executors of his estate and subsequently dies. During the administration of Toby’s estate, Kieron also dies. Archie continues as the sole executor of Toby’s estate. However, it is worth noting that if assets are still be collected then the death certificate of the Executor will need to be provided to the institutions.


IF THERE IS ONLY ONE EXECUTOR


If there is only one executor and they die before completing the administration of the estate, then the executor in the chain automatically becomes the executors of all preceding testators.


Using the same example as above, Archie continues as the sole executor of Toby’s estate. Archie has appointed Bill as his executor. Archie dies before completing the administration of Toby’s estate. Bill is now the executor of both Archie’s and Toby’s estates.


Bill must accept the executorship of both Toby’s and Archie’s estates or neither.


The chain of representation is broken by:


• An executor dying intestate

• A testator failing to appoint an executor in the will

• A sole executor failing to accept the executorship


IF AN EXECUTOR PREDECEASES THE TESTATOR


Simply, if one executor predeceases the testator but there is another executor alive to administer the estate, they can do so.


If there is only one executor appointed in the will and they predecease the testator then a Grant of Probate with will annexed applies, but who is going to apply for this?


The list of who is entitled to apply is:


1. Trustees of the residuary estate

2. A residuary beneficiary

3. The personal representative of a residuary beneficiary

4. Any other legatee

5. A personal representative of any other legatee


We can help.


MiGem

Life Well Planned


Source: Charlotte Merrills - APS Legal & Associates – June 2021





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