Can One Executor Act Alone during Probate?
03 September 2019
By Probate Solicitor, Mahua Jana
A sole Executor is usually able to act alone during Probate, although there are some important factors to consider. A joint Executor will not usually be able to act alone unless the other Executors formally agree to this.
The person appointed by the Deceased in their Will to deal with their Estate is known as the Executor. There can be one or more Executors appointed in the Will, but the maximum number of Executors that can apply for a Grant of Probate is four. It is common for Will Writers to recommend a minimum of two Executors when someone is making a Will, but it's still a common occurrence for only one Executor to be been appointed.
We will examine the different issues that can arise if an Executor has been appointed to act alone, or when a joint Executor chooses to act on their own.
When a Sole Executor Can Act on Their Own
If the Will only names one Executor to act, then this is called a sole Executor. In most scenarios there is no reason why a sole Executor cannot act on their own. For example if the Deceased appoints their spouse as the sole Executor and leaves everything to them, then as long as the spouse is willing and able to take on the role of Executor, there is no reason why they cannot act on their own.
When a Sole Executor Cannot Act on Their Own
There are a limited number of situations where a sole Executor may face problems in the administration of the Estate.
Issues can arise if there is a Trust in the Will. Often though strictly not necessary, a Trust requires a minimum of two people in order for it to be dealt with properly. If there is a Trust within the Will and only one Executor has been appointed, with no provisions for separate Trustees, then it's important to seek legal advice.
The other issue to consider is whether or not the Executor appointed has the ability to act alone. For example if the sole Executor has any capacity issues, then it may be either difficult or impossible for them to act on their own. Equally, if the sole Executor passes away before you, the Estate will be left without an Executor.
This is a common reason why our Probate Specialists and Will Writers would always recommend that more than one person is appointed as an Executor. In the event the sole Executor cannot act or does not want to act, then unless a substitute Executor has been appointed it can lead certain complexities in administering the Estate.
Another consideration when deciding whether or not one Executor should act alone is family dynamics. Dealing with the administration of a loved one's Estate is a stressful time and dealing with the administration alone can add to this stress for the Executor as well as other family members. For this reason, it can be a good idea to seek the assistance of a Probate Specialist during the administration of the Estate, to help alleviate some of the stress.
Can Joint Executors Act Alone?
If more than one Executor has been appointed in the Will, to act together, then these are Joint Executors. In order for one of them to act alone, the other Executor(s) must agree to this.
One Executor cannot take it upon themselves to deal with the administration of the Estate without the agreement of the other Executors. If the other Executors are willing for the one Executor to act alone then they have two options. The Executors who do not want to act can either be served with a Notice of Power Reserved (which means they are stepping aside but can apply to become involved later if they wish) or they can renounce their powers altogether. It is important they seek legal advice before agreeing to either of these routes, as there are consequences to each of these options.
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