How does probate work if the named executor dies?

Kelly-Anne Carr of Wright Hassall explains what happens when the executor of a will dies and who takes on the role if no other executors are named.

Probate Executor Death

What is an executor of a will?

An executor of a will is a person (or persons) who is responsible for carrying out the wishes of the ‘testator’ (the person making the will) in accordance with their will and the legal duties placed on them by law. An executor is specifically named in the will of a testator and their responsibilities are set out in section 25 of the Administration of Estates Act 1925. They are:

  1. To collect the real estate and personal estate of the deceased and administer it according to law.
  2. When required to do so by the court, to present the full inventory of the estate and provide an account of the administration of the estate.
  3. When required to do so by the High Court, to deliver the grant of probate or administration.

Executors have a legal responsibility to administer the estate in a timely manner and in the best interests of the beneficiaries. Duties involved in administering an estate include, but are not limited to, the following:

  • make funeral arrangements
  • prepare a complete list of all the deceased's assets and liabilities, as well as their value at the time of death
  • protect all the assets of the estate against theft, fire, loss and any other destruction
  • advertise for creditors to avoid becoming personally liable for future claims (see more about Deceased Estates notices)
  • prepare and file income and capital gains tax returns on behalf of the deceased to the date of death and for the period of the estate administration
  • prepare an inheritance tax return and apply for a ‘grant of probate’ (proof of legal authority to administer the estate)
  • collect in the assets of the estate to include closing bank accounts, selling shares and properties
  • before distributing the estate to the beneficiaries, pay all outstanding debts including funeral expenses, estate administration expenses and taxes
  • arrange for the distribution of the estate
  • keep complete and accurate accounting records

What happens if the executor of a will dies before the testator?

As a will can be written by the testator at any point during their lives, it is possible for the named executor or executors to pass away prior to the testator. If there is more than one named executor and only one passes away prior to the testator, the remaining executor(s) will continue their duties. Likewise, an executor may have appointed a substitute in their will who will then take up the role.

However, if there is only one named executor and they pass away, or all executors pass away, the The Non-Contentious Probate Rules 1987 (NCPR) determine who is entitled to obtain a ‘grant of letters of administration with will annexed’.

It should be noted the order of persons entitled in this situation are different to the rules of intestacy.

Who applies for probate if the executor dies before the testator?

According to Rule 20 of the NCPR, the order of persons entitled to apply for probate if the executor(s) of a will has died are as follows (in order of priority):

  1. a trustee of the ‘residuary estate’ (the assets left in a deceased person's estate after all gifts are bequeathed and all debts, taxes and fees have been paid)
  2. a residuary beneficiary
  3. a personal representative of any residuary beneficiary
  4. a ‘legatee’ (a person who receives a legacy) or a creditor of the deceased
  5. a personal representative of a legatee or creditor of the deceased

If one or more persons are entitled to the same degree any can apply for the grant without notice to the others. The application must “clear off” (explain what has happened) to the original executor(s).

What happens if the executor dies after probate has been granted?

If the executor dies after probate has been granted but the estate has not been administered, the NCPR apply in the same way as above but a ‘grant of letters of administration de bonis non’ is required. Any executor who has renounced their position is not able to take the place of a deceased executor.

Should you appoint a substitute executor in your will?

Ultimately, choosing your executors is a fundamental decision with significant consequences. You should be mindful of who you are selecting for the role and discuss your thoughts with them. You should also consider appointing a substitute. Importantly, if possible, should your sole named executor (or one of them) pass away before you, ensure that you update your will to avoid unnecessary complications upon your death.

About the author

Kelly-Anne Carr (nee Schofield) is a Solicitor in the Contentious Probate Department at Wright Hassall LLP.

See also

Place a Deceased Estates notice

How to remove an executor of a will

What are the responsibilities of an executor?

What is a grant of representation and do I need it?

Disputing whether a will has been validly executed

Find out more

Administration of Estates Act 1925 (Legislation)

The Non-Contentious Probate Rules 1987 (Legislation)

Image: Getty Images

Publication date: 13 May 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.