As part of writing their Will, a Testator will choose people they trust to act as their Executors after their death. These are the people who will deal with the administration of their estate and distribute it according to the terms of the Will.
Sometimes many years pass between the writing of the Will and the Testator’s death, and in this time things can change. The Executors could die before the Testator, or might have lost mental capacity, or when the time comes be otherwise unable or unwilling to act. So what happens if there are no Executors to act when the Testator dies?
Where there is no Executor, a person must be appointed to act as an Administrator, and apply for a ‘Grant of Letters of Administration with the Will annexed’, rather than a ‘Grant of Probate’.
There is a set order of who may apply for a Grant of Administration, which is set out in Rule 20 of the Non Contentious Probate Rules 1987 and is as follows:
(a) the Executor
(b) any person appointed to hold assets on Trust for a Residuary Beneficiary (a beneficiary entitled to the bulk of the estate after debts, costs and gifts have been made); eg a Guardian for a minor child or an Attorney under a Lasting Power of Attorney
(c) any Residuary Beneficiary (including a Trust beneficiary with a ‘life interest’). Or, if the residue is not wholly disposed of by the Will, any person who becomes entitled under the ‘Intestacy Rules’ to share in the part of the residue not disposed of
(d) the Personal Representative (PR) of any Residuary Beneficiary (but not the PR of one who had just a ‘life interest’, or the PR of anyone holding assets ‘on Trust’ for another person). Or, the PR of any person entitled to share in any residue not disposed of by the Will under the ‘Intestacy Rules’
(e) any other Beneficiary (including one with a ‘life interest’), or anyone holding assets other than the residuary estate ‘on Trust’ for any other person, or any creditor of the deceased
(f) the PR of any other Beneficiary (but not the PR of one who had just a ‘life interest’, or the PR of anyone holding assets ‘on Trust’ for another person). Or, the PR of any creditor of the deceased.
An applicant for a ‘Grant of Letters of Administration with the Will annexed’ must clear off all those who have a prior right. For example; if a person who falls into category c above wishes to apply, they must clear off all those in category a and b.
The Executor in category a is cleared off automatically as they have predeceased.
If are any people in category b, they must first renounce or ‘be cited to accept or refuse a Grant’. Once they are cleared off the person in category c may apply for the Grant.
Where there are people entitled in the same degree any of them may apply for a Grant without giving notice to the others.
Writing a Will is not a guarantee that everything will go as smoothly as planned after your death, and it is important to regularly review your Will, and keep it updated as your circumstances and external situations change.
Heir Tight Wills helps clients put in place robust provisions and valid documents – and keep them updated – to protect their loved ones and their assets both during their lifetime and after their death. For a FREE Consultation to discuss writing or updating your Will & estate planning provisions, contact Rachael Rodgers on 0845 519 7585, or CONTACT US via email.
