Who can step in to administer your estate in the event of the death or incapacity of the Executor(s) is dependent on what stage the probate process has reached when your executor passes away or becomes incapacitated and if there are any surviving executors.
What happens if an executor passes away or becomes incapacitated before probate is granted?
If your executor survives you but passes away, or becomes incapacitated and cannot act, before obtaining a grant of probate, then their right of executorship dies with them. What happens next depends on your Will.
- If your Will appoints several executors, the remaining executors continue in their role as executor and carry on the administration of your estate.
- If your Will appoints a substitute executor(s), they will step-up and assume the role as executor of your estate.
- If there are no co-executor(s) or substitute executor(s) named in your Will, then the Non-Contentious Probate Rules 1987 (NCPR 1987) applies. In most cases, your residuary beneficiaries become entitled to apply for ‘Letters of Administration with Will annexed’ and assume the role as personal representatives of your estate. If your sole or last surviving executor has appointed an Attorney under a Lasting or Enduring Power of Attorney, that Attorney can choose to act as the personal representative and administer your estate on behalf of your executor.
What happens if an executor passes away or becomes incapacitated after probate is granted?
If your executor has taken out a grant, this is where things can become a little more complex. Again, what happens is dependent on your Will, and it can even become dependent on your executors Will.
- If your Will has appointed several executors, one of your executors passes away or becomes incapacitated after taking out a grant, and the estate administration is incomplete, then again it is the surviving executors named on the grant who continue to act in the administration of that estate. (It is important to note that if your Will names a substitute executor(s), they cannot step in to act where a grant of probate has already been taken out).
- If your sole or last surviving executor loses capacity after the Grant of Probate has been issued, a new personal representative is established in accordance with the NCPR 1987. The original Grant naming your incapacitated executor is not revoked, but the new personal representative will have to apply for a new Grant of Probate, with power reserved to the incapacitated executor. They will then have the authority to administer your estate.
- If your sole or last surviving executor passes away, this is where their own Will may become relevant. Section 7(1) of the Administration of Estates Act 1925 provides that the executor of your sole or last surviving executor becomes the executor of your estate. This is known as the chain of representation. Where it applies, the chain of representation is automatic, and no further grant is needed for the successive executor(s) to complete the administration of the earlier estate(s)
What breaks the Chain of Representation?
The chain of representation is broken where there is no succession of executors, such as:
- If your sole or last surviving executor did not leave a Will. The chain of representation can only pass from proving executor to proving executor. Therefore, there is no chain of representation where an individual dies intestate and a grant of letters of administration is taken out by an administrator.
- If your executor leaves a Will, but their executor passes away before obtaining a Grant of Probate.
Where the chain is broken, a new Personal Representative is again established in accordance with the NCPR 1987. Your new Personal Representative will need to apply for what is called a Grant de Bonis Non Administratis (or “Grant of goods not yet administered”).
If you would like help or advice on any of the points raised in this article please please do not hesitate to contact our Private Client department today.