One of the most important steps when making a Will is choosing who you’d like to act on your behalf as an Executor. But what happens if your chosen Executor dies before you do? Steve Wright, our Head of Estates, offers some guidance on the options available.
Choosing your Executor is a vital part when planning what will happen to your estate. An Executor is usually a trusted friend or family member, who knows you well, and who you can be sure will act in your best interests when needed. They can be a useful sounding board when you’re first drawing up your Will, and after you die will be responsible for collecting in and valuing your assets, calculating and paying any tax liabilities, selling or transferring your assets, preparing estate accounts and distributing your estate to your chosen beneficiaries. They might also be a useful source of support to your close family and friends.
The role is an important one, but it can be time-consuming. So, it’s important to choose your Executor carefully, and ensure it’s someone willing and able to act on your behalf. If you’re struggling to decide on who you feel can take on the role you can opt to use a professional Executor.
If you do choose a friend or family member, it’s worth considering what might happen if they die before your estate is wound-up, either before or after they start work on the administration.
If your chosen Executor dies during your lifetime, you should update your Will as soon as possible and appoint a new one. It’s usually helpful to appoint more than one Executor, to enable a surviving Executor to administer your estate on their own if needed.
If your Executor dies after you but before Probate has been granted, any surviving Executors can carry on with the process. If a sole Executor dies, then a set of rules known as The Non-Contentious Probate Rules 1987 will define who’s able to deal with the next steps.
If your Executor is partway through dealing with your estate and has already obtained Probate, then the Executors of their estate can step in and wind up both your estate and your Executor’s estate. This is called a chain of representation.
However, if they didn’t leave a Will themselves, a chain can’t be set up. At this point someone else will need to make an application to the court to take over the estate administration. This person will usually be chosen in accordance with the Probate Rules.
Finding and appointing the right person can be complicated, and it’s useful to take advice to ensure that the correct individual makes the application, particularly as Executor’s can be held personally responsible for any errors made when administering an estate.
Choosing the right Executor can be daunting. Here are some aspects that you should consider when selecting yours:
- First and foremost, you must trust the person you are appointing. If in doubt, play safe and look for someone else.
- Consider if they will have the desire and time to carry out their duty. This could be an issue if they lead a busy family or business life.
- Think about the ages of your chosen Executors. If they are the same age or older than you, it’s possible that they might die before you or not physically be able to act.
- It’s inevitable that some documents will require a signature. If your Executors live abroad this might delay the administration.
- The number of Executors you choose is also important. If you select just one, then you run into the problems mentioned above. Too many, and you end up with “too many cooks in the kitchen”.
- If you select just one Executor, consider appointing an alternative; someone who can step in should your chosen Executor be unable or unwilling to act. A professional option would be a good choice.
- Make sure you ask them if they are prepared to act as your Executor before including them in your Will – remember, just because you have appointed them doesn’t mean they have to do it!
To discuss any aspects of your own estate planning please contact your nearest office.
