How Does Probate Work if the Named Executor has Died?
29 January 2020
If an Executor dies after the Estate administration has begun, then what happens next will depend on whether the Executor dies before or after Probate has been granted. In this article, we explain how it works.
The Role of Executor Explained
Usually, when writing a Will, the testator (the person writing the Will) gives details of who the Executors and Trustees are. These are the people who will be responsible for administering the Estate on the death of the testator. The Executor's role carries a significant amount of responsibility and involves a lot of legal, tax and administrative work.
Amongst other things, the Executor is responsible for:
- Notifying organisations about the death, such as utility companies, HM Revenue & Customs, and the Department for Work and Pensions
- Applying to the Probate Registry for a Grant of Probate
- Closing down bank accounts
- Paying off any debts or liabilities that are outstanding
- Gathering in all the assets, such as stocks and shares, and calculating their value
- Selling or transferring property
- Calculating and paying tax, including Inheritance Tax
- Distributing the assets to the beneficiaries named in the Will
So how does this work if the named Executor has died?
The Executor Dies during the Lifetime of the Testator
If the testator is still alive when the Executor dies, they should consider whether they need to update their Will to appoint a new Executor. However, they may have already appointed one or more substitute Executors who could step in and deal with the Estate.
If an Executor dies after the testator dies (or the Testator didn't update their Will to appoint new Executors) then matters are a little more complicated. The process will depend on whether the Executor dies before or after Probate has been granted.
The Executor Dies before Probate has Been Granted
If an Executor dies before Probate has been granted, but there are other Executors named in the will, the surviving Executors can simply apply for the grant.
However, if all of the named Executors have died or there are no substitute Executors named, the law will determine who is entitled to administer the Estate. In most cases this role will fall to one or more of the residuary beneficiaries of the Estate. If, however, the residuary beneficiary was also the Executor, then the Executor's Personal Representatives can then make an application to administer the Estate.
The Non-Contentious Probate Rules 1987 lists the order of priority of who can take this role.
In this situation, the appropriate person must be appointed to act as an Administrator, which is similar to the role of the Executor. This person must apply to the Probate Registry for a document called a Grant of Letters of Administration (with the Will annexed).
This process can get quite complicated, especially if there appears to be no-one immediately available to carry out this role. We would always recommend that you seek professional advice if you are unsure of this process.
The Executor Dies after Probate has Been Granted
Another situation that may arise is where a sole Executor dies after the Grant of Probate has already been issued. What happens next will depend on whether the deceased Executor left a Will. If they did, then the acting Executor of their Estate will also become the Executor of the original deceased's Estate. This means that no further Grant will need to be issued to the original deceased's Estate. This is known as the chain of representation.
However, if the deceased Executor did not leave a Will or Letters of Administration with Will annexed has been obtained, then there would be no chain of representation. Instead, a further Grant would be required to complete the estate administration, which is called 'Letters of Administration de Bonis non Administrates'. The person who is entitled to apply for this document can be found in Rule 20 of the Non-Contentious Probate Rules 1987. Again, this will usually be a residuary Beneficiary.
How the Chain of Representation Works
To illustrate how the chain of representation works in practice, here is an example:
Jane dies, appointing John as her sole Executor. John obtains the Grant of Probate in his name. During the administration of the Estate John dies before the Probate process is finalised. John left a Will appointing Martin as his sole Executor. When Martin obtains the Grant of Probate for John's Estate, he will also become the Executor of Jane's Estate and there is no need to amend the Grant for Jane's estate or obtain a new one.
If in the above example John didn't leave a Will, there would be no chain of representation. Instead, a further grant would be required to complete the administration of Jane's Estate.