The death of an executor

AN EXECUTOR, who has to be appointed under a will, is one of two types of legal representatives of the estate of a deceased person. The other type of legal representative may be an administrator, who has to be appointed by a court.

Apart from the fact that only an executor may make an application for a grant of probate, the roles of an executor and an administrator are the same, in that they both collect all assets of the deceased person, pay all the debts owed by the estate, and then distribute the estate to the beneficiaries in accordance with the provisions of the deceased person’s will.

One reader recently asked what happens if an executor dies, and the short answer is that it depends on a number of factors related to the time when he dies and what steps he may have taken in relation to the deceased person’s estate at the time of his death. Below, I will explore two scenarios.

MCGREGOR Executor predeceases testator or dies before obtaining the grant of probate

If an executor predeceases the testator (that is, the person who makes the will), it may have no effect on the administration of the estate if there is another executor named in that will who is willing to assume his role, because the surviving executor may apply for the grant of probate and proceed to administer the estate. If, however, there was only one executor named in the will, his death will mean that the estate cannot be administered by an executor. An application will have to be made to the court for a grant of letters of administration with will annexed by someone who is connected to the estate of the deceased person, such as the main beneficiary under the will.

Executor dies after obtaining the grant of probate

If there is a single executor appointed under a will, or only one of the named executors obtained the grant of probate and then died, the first thing to do is check to find out whether the deceased executor left behind a will in which he appointed at least one executor. The executor appointed under that deceased executor’s will then has the authority to complete the administration of the estate through what is known as the ‘chain of representation’.

Where the executor died without leaving behind a will or did not appoint an executor under his will, an application will have to be made for a grant of letters of administration with will annexed, and the main beneficiary will be the most likely applicant.

WORDS OF ADVICE

In an effort to minimise delays in the event of an executor’s death, there are some precautionary measures to consider: Appoint at least two executors under your will.

Update your will by appointing a new executor if one of the original ones passed away. Encourage your appointed executors to also prepare wills and appoint executors of their own so that the chain of representation can be maintained.

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