The executor named in the Will has died – What happens now?
When drafting a Will, a testator will usually appoint one or several people to act as their executor. An executor is responsible for managing the administration of the testator’s estate and making sure that the testator’s assets are distributed to their chosen beneficiaries in accordance with the Will.
An important part of the executor’s responsibilities is to make an application for a Grant of Probate, which gives them the formal legal permissions they need to transfer estate assets, such as property, bank accounts, or life assurance policies, from the estate to the beneficiaries.
What happens when an executor cannot administer the estate?
Ordinarily, the executor named in a testator’s Will is able to conduct their duty to distribute an estate without complication.
However, a significant length of time may pass between the Will being executed and the testator passing away, and it is not uncommon for an executor to predecease the testator.
There are other circumstances that may also prevent the executor from applying for the grant. They may for instance lose mental capacity or be unable to fulfil their role for reasons of health, or they may simply decide that they no longer want to be responsible for the estate and renounce their executorship.
If the testator does not update their Will to appoint a replacement executor in their lifetime, and if the Will does not provide a backup executor, this can leave the estate without an executor to apply for the Grant of Probate and administer the estate. Who, then, is responsible for taking on that role?
Administrators and the Grant of Letters of Administration with Will Annexed
Where the executor named in the Will has died, or cannot act for any other reason, a person connected to the estate can be nominated as the estate’s administrator. Once nominated, the administrator must then apply for a ‘Grant of Letters of Administration with the Will Annexed’ (as opposed to a normal ‘Grant of Probate’).
There is a set order of individuals who can apply for Letters of Administration where there is no executor willing or able to apply for Probate. These are as follows:
- A Trustee for one or more beneficiaries who will inherit from the remainder of the estate after all specific bequests have been made – that is, a Trustee of the ‘residuary estate’; then
- A Beneficiary who will inherit from the residuary estate; then
- The Executor or Administrator of a deceased Beneficiary whose estate will inherit from the residuary estate; then
- Any other Beneficiary of the estate or anyone who is owed money by the estate; then
- The Executor or Administrator of any other deceased Beneficiary of the estate or of anyone whose estate is owed money by the estate.
How do I apply for a Grant of Letters of Administration?
For a prospective administrator to successfully apply for a Grant of Letters of Administration, they must ‘clear off’ all those who have priority entitlement to them. ‘Clearing off’ means that the applicant must explain why any person with a greater entitlement has not applied for the grant in their submission for the Grant of Letters.
How we can help you
When drafting a Will, it is important to keep in mind the many complications that may arise during and after its execution – this helps to minimise risks and provides the greatest likelihood that your estate is administered in the way you want.
When complications do arise, our probate team is here to help ensure that procedures are followed correctly, and to make sure that the estate is distributed in a timely manner. They can offer advice at every stage of the estate planning process, calling upon a wealth of experience to ensure that complications are avoided where possible, and swiftly resolved where they are not.
And if a dispute arises because the executor named in the Will has died, then our Contesting Wills lawyers are on hand to offer specialist legal advice.
Contact our legal helpline for a free initial chat and details of No Win, No Fee funding.
Call 0333 888 0409 or send an email to [email protected].