As part of writing their Will a testator will choose people they trust to act as their executors after their death. These are the people who will deal with the administration of their estate and distribute it following the terms of the Will. Of course sometimes many years pass between the writing of the Will and the testator’s death and in this time things can change. The executors could pass away before the testator, or lose capacity, or when the time comes be otherwise unable or unwilling to act. So what happens if there are no executors to act when the testator dies?
Where there is no executor a person must be appointed to act as an administrator and apply for a grant of administration with the Will annexed. There is a set order of who may apply for such a grant. This is set out in Rule 20 of the Non Contentious Probate Rules 1987 and is as follows:
(a) the executor
(b) any residuary legatee or devisee holding in trust for any other person. This is any person to whom the residuary, personal or real estate is given on trust.
(c) any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue under the intestacy rules.
(d) the personal representative of any residuary legatee or devisee (but not one for life, or one holding in trust for any other person), or of any person entitled to share in any residue not disposed of by the will.
(e) any other legatee or devisee (including one for life or one holding in trust for any other person) or any creditor of the deceased.
(f) the personal representative of any other legatee or devisee (but not one for life or one holding in trust for any other person) or of any creditor of the deceased.
An applicant for a grant of letters of administration with the Will annexed must clear off all those who have a prior right. For example if a person who falls into category c above wishes to apply they must clear off all those in category a and b. The executor in category a is cleared off automatically as they have predeceased. If are any people in category b they must first renounce or be cited to accept or refuse a grant. Once they are cleared off the person in category c may apply for the grant.
Where there are people entitled in the same degree any of them may apply for a grant without giving notice to the others.
8 comments
nicky Brom
23rd September 2021 at 11:06 pm
What if I don’t know anything about my parent’s will and maybe I’m an executor, but I don’t want to be because I live thousands of miles away. My parents don’t tell me (us) anything so should I pry and try to get information–they’re in their 90’s and are very private. Will the government step in and execute their will if I decline, and will they deal with disposing of their assets, such as property and other assets?
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Siobhan Smith
4th October 2021 at 11:10 am
Hi Nicky, If you are your parents’ executor you can’t do anything to renounce that position while they’re still alive. All you could do is inform them that you don’t want the role and that if appointed you’ll renounce in the hopes that this discourages them from appointing you. If after they pass away you find you are appointed an executor you are free to step down as long as you don’t start dealing with the estate. What would then happen would depend on the terms of their wills. If other executors or substitute executors were appointed they would still be able to act. If you stepping down meant there was no executor then an administrator would be appointed to deal with the estate instead.
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George Partridge
30th August 2022 at 10:12 pm
No executor can be found to process my will
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Anthony Belcher
5th September 2022 at 10:48 am
Hi George,
If you’re writing your will and there isn’t anyone you can appoint personally, then you should consider appointing a professional executor. It would be best if you speak with one of our members or SWW Trust Corporation as they would be able to advise you more on this.
Anthony
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Jules
22nd November 2022 at 3:39 pm
Hi,
My father left a will but did not name any executor in it. As far as I can tell the will is still valid (it was hand-written on a purchased template and had been signed and witnessed).
My mother is named as the sole beneficiary of the estate (including the house which is in my father’s name).
I believe we need probate but do not have an executor. How do we proceed?
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Siobhan Rattigan-Smith
23rd November 2022 at 4:47 pm
Hi Jules, In that case an application would need to be made for a grant of letters of administration with the will annexed in order to appoint an administrator. I am afraid we don’t provide specific probate advice, but a probate practitioner would be able to provide advice on this application and the process.
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Paul J Falinski
21st March 2023 at 2:44 am
My wife’s father passed away and she was the durable power of attorney. The will doesn’t name an executor. There are 4 siblings listed as beneficiaries, including my wife. Can she be the executor or does she have to be appointed and if so, by whom?
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Manisha Chauhan
2nd June 2023 at 10:29 am
Hi Paul, your wife can come forward and apply for probate
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