04 Jul What happens when the Executor of a Will dies?
What happens when the Executor of a Will dies?
There is often a lot of confusion out there as to who acts in the executor’s place to administer a deceased estate if the executor dies.
When one of Multiple Executors Dies
If there are multiple executors, and one or more die, the remaining executors can continue to administer the estate. There is no need for a replacement as the remaining executors act for the estate as a whole.
When Sole Executor Dies
If there is only one executor named in the will then it becomes a bit more complicated.
If Probate has not yet been granted the main beneficiary can apply for letters of administration with the will annexed and act in the place of the executor.
If probate is granted and then the executor dies, the entitlement to administer the estate follows the “chain of representation” to the executor’s executor. In other words, whoever the executor named in their will as their own executor, will take over the administration of the estate.
This is especially important and can be common in situations if there funds are held in trust for a large period of time. The executor trustee of these funds changes to their own executor should they die. This can cause delays for beneficiaries whilst awaiting the new executor to prove the will of the deceased executor.
Another issue can arise if the executor dies without leaving a valid will for themselves. In this case there is no executor of the executors estate. For these matters the main beneficiary for the original deceased (or another appropriate person) will have to apply for Letters of Administration de bonis non with Will annexed. This will cause delays in the distribution of the estate as large portions of the original administration process will have to start all over again.
When Letters of Administration Administrator Dies
If the deceased has been granted letters of administration for the original estate, then this is a totally different situation.
The chain of representation does not apply to letters of administration. Instead, an appropriate and eligible person will need to make an application for letters of administration de bonis non.
How to prevent these problems arising
One of the best ways to ensure there aren’t any issues with this is to appoint more than one executor in your will as an alternative should your executor pass away after your death or after they have obtained the probate grant but not yet distributed assets and wound up your estate. Providing for multiple or alternate executors, allows the administration of the estate to continue largely uninterrupted if one of the executors die.
Another way to avoid these issues is to regularly update your will to ensure that you have appointed executors who are not at an advanced age or dealing with an illness that affect their capacity such as dementia. It is also recommended that you appoint executors who are younger than you and therefore expected to survive you by a number of years.
If you have been named as an executor of someones will you can renounce your position. If you are currently unwell, or of an advanced age you should consider whether you will be able to continue to act for the estate for a long period of time. Most estate administration takes at least 6- 9 months, possibly more than a year if there are any complications or large volumes of property that need to be sold. This is especially important to consider whether the will leaves funds on trust for some beneficiaries or classes of beneficiaries. This could result in the executor having duties for a number of years following the administration of the estate and they may well lose capacity or die during that time.
It is always good to speak to a lawyer prior to preparing your will or commencing probate to get advice on comprehensive estate planning.
If you would like to know more about estate planning, take advantage of our free half hour legal consults. They can be done in person or via Skype or telephone conference.