A Will may be written and not updated some time before death or the Testator. It is not unheard of for the named Executor or Executors to die or be unable to execute the Will, and this can become a complicated situation. That is why it is essential to keep your Will up to date and to act immediately if one of your Executors passes away.
What is an Executor of a Will?
An Executor is a name given to a person who is appointed in a will as taking legal responsibility for carrying out the instructions that have been left in the Will by the deceased. The executor will be in charge of carrying out the instructions laid out in the Will, that will decide how the assets and estate will be distributed amongst the beneficiaries. Anyone over the age of 18 can be the executor of the Will. However, the role is usually given to a close relative or friend of the deceased. If there is no Will, a court may appoint an administrator in their place.
The role of executor can be a demanding one, the individual or individuals are required to take on the responsibility that often requires complex financial transactions, including valuing and distributing any assets and property and ensuring tax payments are completed, as well as applying for probate and making any Court appearances that may be required.
What if the executor dies before the Will maker?
When the Will maker makes their Will, the person they choose to be the executor may be in good health. This may not always be the case by the time the Will maker passes away. Unfortunately, the Will Maker may not have updated their Will after the executor had passed away. This means that someone else will need to step in and fill the duties.
Often the Will maker will nominate more than one execute so that the responsibility can be shared, as well as in case a situation like this arises, but this is not always the case. If you have written your Will and your only Executor dies before you, you need to contact your Wills and Trusts solicitor to update your Will. While you are making this update, it is an excellent opportunity to review your current Will and ensure that you add an executor to ensure that you are covered should you happen to be in this situation again int he future.
What happens if the executor dies before the grant of probate has been issued?
When the maker of the Will passes away, the executor will apply for a Grant of Probate. This is a legal document which confirms that the executor has the authority to deal with the deceased persons’ assets and estate.
As long as there is another Executor listed in your Will, there shouldn’t be any complications if the executor dies before the Grant of Probate being issued. The second executor will resume responsibilities and complete the Probate process. If all the Executors of the Will have died, then as per English and Welsh law, the Non-Contentious Probate Rules will apply.
What is the non-contentious probate rules?
The Non-Contentious Probate Rules state that a residuary beneficiary can act as an Executor. The beneficiaries will need to decide who will be nominated to complete the task of executor; it is often recommended that more than one beneficiaries nominate themselves to ensure that all parties are satisfied with the outcome.
What happens if executor dies after probate has been granted?
If an Executor passes away before they are able to complete the duties required by them to settle the assets and estate, but after the court has granted the probate. The beneficiaries will need to find out if the executor has left a will. If they have left a Will, they would themselves have named Executors of their Will and their Executors will now have the responsibility of settling the first estate. This is known as the Chain of Representation. It is worth noting that the new executor may need to also apply for a new Grant of Probate to show the link between the first executor the original estate.
The Chain of Representation will only be relevant if the executor has made a will, if the executor passes away but has not left a Will, the Non-Contentious Probate Rules will apply to the original estate. Meaning that the Rules of Intestacy will decide whom deals will decide who deals with the deceased executor.
If you need any further help understanding or updating your Will, or if you have been named executor and you need help with taking the next steps. Our professional and compassionate probate solicitors will be able to assist you.
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