Chain of Representation
How Does Probate Work if the Executor of a Will Dies?
Unless you are in the legal profession, you’re unlikely to know that if the person you chose as Executor dies during the probate period, their Executor inherits the duties, becoming your Executor by default. Which could mean a complete stranger making some very key decisions regarding your estate. This is called the Chain of Representation and is something you should consider when choosing who will take care of your affairs when you die.
‘The role of an Executor is to establish the deceased’s Estate, obtain Probate, collect the assets, settle the liabilities and distribute the Estate. You can name up to four Executors (although it’s recommended that no more than two apply for Probate as group decisions can get messy. If one of the named Executors die before then the others will be there to take on the duties.
If ALL of the named Executors have died before the deceased, then the Non-Contentious Probate Rules 1987 must be followed. In these cases, it is most likely that the beneficiary or beneficiaries who are receiving the largest sum of the Estate in the Will would have the right to deal with the Estate. A maximum of four Executors can act in an Estate and it is advisable that two act to avoid such circumstances.
Where there are more than four beneficiaries of an Estate, they are all equally entitled to act, although only four can. For example, if the deceased left their Estate equally between their six children then all of them are equally entitled to act, but only up to four can apply for Probate. It is for the family to decide who should act and deal with the Estate. For practicable purposes it would be recommended that two beneficiaries act.
Where the sole Executor dies after Probate has been issued by the Court and the Executor has not completed the administration of the Estate, you should first find out whether they left a Will.
If the Executor has left a Will, then it is the responsibility of their Executor to finalise the Estate – the Chain of Representation. The Probate that was issued by the original Executor must be revoked with the Probate Registry and their Executor must make a new application to the Court for Probate to be issued in their name.
If the Executor who has died has not left a Will then the Non-Contentious Probate Rules 1987 must be followed and again, it is most likely that the beneficiary or beneficiaries who are receiving the largest sum of the Estate in the Will would have the right to deal with the Estate.’*
So, what does this all mean to you? When choosing an Executor, consider their age, their circumstances and how likely they are to cope with the responsibility in the event of your death. You need someone that can step up whatever happens, whether you die suddenly next week or peacefully in your sleep at the ripe old age of 115. Close friends may be of a similar age to yourself and therefore might be prone to the same health concerns as you grow old together; your spouse or children may be too upset by your death to deal with handling your estate; colleagues and neighbours may not still be colleagues and neighbours if a lot of time has passed between the writing of your Will and your demise.
So how do you choose? Discuss it with the people you are considering. Find out how they feel about it and get their agreement before you make it official. With the vast amount of information available online, DIY probate is becoming more common but there is a lot to understand before anyone attempts it. Make sure the person you choose is capable of understanding the processes that need to take place. Talk to your Solicitor. Having a professional handle your Estate will ensure there is no bias, no emotion and no conflicted feelings when making decisions – so it could be worth including them as one of your Executors. Plus, they’ll know exactly what needs to be done.
Ultimately, it’s always a good idea to name more than one Executor and, should one of them pass away before you do, make sure you update your Will.
*Extracts taken from an article written by Probate Lawyer Jessica Llewellyn 7th February 2017