When making a Will one of the first things that needs to be considered is who you would like to appoint as your Executors.  Whoever you appoint will be responsible for administering your estate and dealing with your affairs in accordance with the wishes contained in your Will. 

The majority of people tend to appoint relatives or close friends to act as their Executors.  However some would prefer to appoint professionals such as a firm of solicitors, especially where arguments could arise between family members. You can appoint more than one Executor but the maximum number you can appoint is four.  Where people only appoint one Executor then they should consider appointing replacement Executors.  If a replacement Executor is not appointed, then issues can arise if the sole Executor dies or is unable to act before the administration of the Estate has been completed.

What happens when the Executor dies before the Testator?

If the testator (the person making the Will) outlives the appointed Executor, the person responsible for administering the Estate will depend on the terms of the Will.  If a replacement Executor has been appointed, then the responsibility will fall to them.  

However, if all of the named Executors have died and the Will had not been updated before the Testator passed away then the Non-Contentious Probate Rule 1987 set out a legal hierarchy as to who is entitled to apply for probate/legally administer the estate.  First of all anyone who has been appointed personally as a Trustee to hold assets on trust for a Residuary Beneficiary is next in line to act.  Next in line to act are the beneficiaries who are receiving the largest proportion of the Residuary Estate.  If multiple residuary beneficiaries are entitled to receive an equal share of the estate, then they all have an equal right to act.

But as previously mentioned, no more than four people can act as Executors during the administration process.  Therefore if more than four named beneficiaries are entitled to an equal share if the Residuary Estate then it must be limited to four. 

What happens when an Executor dies during the administration of the Estate and after the Grant of Probate has been obtained?

A Grant of Probate is a document issued by the Probate Court that gives the Executors authority to administer the deceased’s estate.  It confirms the validity of the Will and the identity of the Executor(s).

If the Executor dies after the Grant of Probate has been issued, then the winding up of the Estate can be dealt with by any other jointly appointed Executor.   However, if there is only one Executor and they have died, or if other named Executors do not wish to act then it depends on whether the deceased Executor made their own Will.  If they have, then the Executors named under the deceased Executors Will, are responsible for completing the administration of the Estate.  This is known as the Chain of Representation. 

If the Executor dies without leaving a Will there can be no Chain of Representation and the Non-Contentious Probate Rules apply.  In respect of the deceased Executors Estate the Rules of Intestacy decide who deals with the administration of the Estate.

To try and avoid situations arising where an Estate is left without an Executor, then it would be sensible to consider appointing more than one Executor under your Will.  It would also be sensible to consider appointing someone younger than you so they are likely to be around to take on the job when your death occurs.

If you would like any help with making a Will or administering the estate of someone who has died,  please contact our Wills and Probate Department.