How does probate work if the executor has died?

30 October 2020

By Probate Lawyer Jessica Llewellyn

If the executor of an estate dies, someone else with the legal authority to do so will need to step in to complete probate.

The role of an Executor is to: - value the deceased's estate - get legal authority to deal administer the estate, with a grant of probate - collect in the estate's assets - settle any debts (liabilities) - distribute the estate

Whether the executor died before the deceased, before the grant of probate was issued or after the grant of probate was issued, you'll need to determine who now has authority to administer the estate. This will depend on the circumstances.

If the executor dies before the deceased

If an executor named in the Will dies before the deceased and before the grant of probate has been issued by the Court, what happens next depends on what the Will says. If there are other named executors in the Will, it would be their responsibility to deal with the estate.

If all of the named executors have died before the deceased then it's likely the beneficiary or beneficiaries who are receiving the largest proportion of the estate would have the right to administer the estate. A maximum of four executors can act during probate and we would always recommend that 2 executors act to minimise the risk of this situation arising.

If there are more than four beneficiaries with equal shares of the estate, they are all equally entitled to act as executor, but only four can do so. So if the deceased left their estate equally between their six children, although they are equally entitled to act, only up to four could apply for Probate. It is up to the family to decide who should act and administer the estate.

With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excl. VAT), Property & Estate Administration affairs.

If the executor dies after obtaining the grant of probate

If the executor dies after obtaining the grant of probate, but before they have completed the administration of the estate, what happens next depends on what the Will says. If the Will names any additional executors, then they would be responsible for stepping in. If no other executors are named, find out whether the executor who died left a Will.

If the executor has left a Will then it becomes the responsibility of their executor to finalise the original estate. This is called the Chain of Representation. The grant of probate that was issued to the original executor must be revoked by the probate registry and the new executor must make a new application for a grant of probate in their own name.

If the executor who died didn't leave a Will then, again, it's likely that the beneficiary or beneficiaries who are receiving the largest sum of the estate will have the right to deal with the Estate.

The grant of probate that was issued to the original executor must be revoked by the probate registry and a new application made. Any executor who has previously renounced their role will not able to take the place of the executor who has died.

For more information see Renunciation as Executor of a Will.

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