Will an Executor always be the person(s) named in a Will?

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Executors in a will

The person(s) taking the grant of probate won’t always be the executors named in the will. 

The first line of people entitled to become the executors of an estate are those person(s) named in the will to take that position.  However, this is only crystallised when the grant of probate is issued.  It may be wanted or necessary for others to become the appointed executors.

Here, we take a look at some of the circumstances in which alternative executors may end up taking the grant.  And, we also look at how this concept of ‘only an executor when grant issued’ impacts the administration of an estate.

What is an Executor?

The executor of an estate is responsible for concluding the legal affairs of the testator (the person who made the will).  This will include: establishing the estate; paying IHT; applying for probate; realising cash assets; paying all bills; and distributing both cash legacies and the residuary estate.

Executor appointment in the Will

This simply points to the person(s) whom the testator would like to act as their executor.  It does not create the legal appointment in a way that allows those chosen to get on and administer the estate.  That is not to say that there are not potential responsibilities that arise for potentially appointed executors.

So, for example, one might ask why an executor can not simply show a will to prove the fact that they are executor and get on and deal with the estate – eg realise assets.  The reason is that the legal authority does not arise until the grant of probate has been issued. And so if a bank issued a closing balance to an ‘executor’ pre grant of probate, but then someone else took the grant of probate, the bank would potentially be liable to pay the balance out a second time!

What if an Executor just doesn’t want to act?

If an appointed executor simply does not want to act, they are under no legal obligation to do so.  Subject to them not ‘intermeddling’ (see below) they can simply renounce (formally cancel) their potential appointment and they will have nothing more to do with it.

What if an Executor has intermeddled?

If an executor (pre grant of probate) has done substantive work dealing with the administration of the estate this is known as ‘intermeddling’.  And, if they are deemed to have intermeddled, they can not then renounce their appointment.

What is Power Reserved to an Executor?

Power reserved is where the executor does not ‘revoke’, but instead is not named on the grant of probate when it is issued. This means they don’t have to have any day to day involvement in things.  An executor to whom power is reserved can be later appointed if needed.

When do appointed Executors not act?

There are number of reasonably common reasons for person(s) appointed in the will to be executor not ending up on the grant of probate.  Those reasons include:-

  • they just don’t want to take on the considerable task and responsibility
  • they are unable to (illness or even their own death)
  • the beneficiaries ask (eg they may want to do the work themselves)

Who takes the Grant of Probate if the appointed Executors don’t?

Section 20 of the Non-Contentious Probate Rules 1987 set out who is entitled to a grant (ie the list of priority) which in simple terms says:

  1. executor (named in will)
  2. residuary beneficiary (in will)
  3. other beneficiary (by virtue of part or all of the will failing)
  4. The Treasury Solicitor (when claiming bona vacantia on behalf of the Crown)

Is it still a ‘Grant of Probate’ if someone else takes the grant?

No!  If someone other than the executors named in the will take the grant, then it is called a ‘grant of letters of administration’ (not a ‘grant of probate’).  It is only a name – and it amounts to the same thing.

Similarly, the persons in question won’t be called ‘executors’ they will be called ‘administrators’.  But again, it is a pure technicality.

Need help with being an Executor?

If you are the executor of an estate, QLAW can help!  With anything from renouncing your role, through to dealing with the entire administration of the estate on your behalf.  You can reach out by leaving a comment below, calling, or emailing us.

NB – this article is not intended to be legal advice specific to you, and it (and any comments left) should NOT be treated as such.

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