Do all executors of a Will have to apply for probate?
01 April 2020
Often more than one Executor will be named in a Will. In this article, we explain whether all of the named Executors need to apply for Probate, and what happens if some Executors are unable or unwilling to act.
Do all of the executors need to get probate?
Not all of the Executors named in a Will have to apply for Probate, although this can sometimes be the most logical option. If some Executors choose not to be involved in the administration of the Estate, then they have a couple of options, as we explain below.
Appointing executors of the Will
One of the benefits of making a Will is that you can appoint an Executor or Executors to be the person or people to wind up your affairs after you die. This process is known as administering your Estate.
While there is no limit the number of people you can appoint to be Executors in a Will, a maximum of four people can apply to the Probate Registry to prove your Will and be named on the Grant of Probate.
How many people can be named as Will executors?
Most people therefore name between one and four people in their Will to be the Executors of their Estate. An Executor can be a close relative or a trusted friend, or it could be an organisation, such as a firm of Solicitors or a bank. For more information see our Executor Guides.
When a person dies and Probate is required to deal with the administration of their Estate, the most straight forward option might be for all or both Executors named in the Will to apply for the Grant of Probate together. This can be particularly useful where there is the potential for a dispute or disagreement, and it would be sensible to have two or more Executors acting together to administer the Estate to ensure fairness.
However, there will be many situations where it may not be convenient, desirable or practical for all of the named Executors in the Will to have an active role in the administration of the Estate.
Here are the options if you do not wish to be one of the Will's executors...
Renunciation (resign as executor)
Any Will Executor who does not wish to have an active role in winding up someone's affairs when they die has the choice to resign or “renounce” their right to apply for a Grant of Probate. This will be by way of a formal “Deed of Renunciation”. One of the requirements of renouncing is that the Executor has not already been involved in the administration of the Estate and has not received any of the Estate assets (legally referred to as “Intermeddling” in the Estate). If an Executor has already begun dealing with the Estate then they will need to continue unless they become unable to act for any reason.
If the deceased’s Will appoints family members as Executors as well as a professional organisation such as a firm of Solicitors, the family may wish for the professional Executors to renounce. While an Executor is under no obligation to renounce, most professional organisations will agree so long as they believe it is in the best interests of the Estate. Some professional organisations may however charge a fee to prepare and sign a formal Deed of Renunciation.
A renunciation is usually final, and once it has been sent to the Probate Registry, it can only be retracted or withdrawn with the consent of a District Judge or Probate Registrar. It is important to consider this if you are an Executor who is considering renouncing. For more information see Renunciation as Executor of a Will.
Probate 'power reserved' letter
An Executor named in a Will can also choose to have Power Reserved to them. It is a requirement of the Court that any Executors who are not applying for a Grant of Probate be served with a “Notice of Power Reserved”. This is simply a formal notice from the acting Executor or Executors, advising that they are intending to apply for a Grant of Probate in the names of the acting Executor or Executors only.
The Grant of Probate issued by the Probate Court will state the name of the acting Executor or Executors but will note that power has been reserved to another Executor who is not named on the Grant.
Applying for a Grant of Probate with power reserved can be particularly useful in situations where an Executor lives in another country, for example, and it would therefore be impractical for all of the paperwork to be signed by all or both Executors named in a Will.
Unlike a renunciation, an Executor who has Power Reserved to them can still choose to become involved in the administration of the Estate at a later time if they want or need to.