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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
An executor/executrix is a person named in a Will who is responsible for carrying out the instructions in a person's Will and administering their estate. Executors can have a number of responsibilities following someone’s death, including: securing, insuring and clearing the deceased’s property, collecting in all the deceased’s assets, paying outstanding bills, distributing the estate, arranging the funeral and applying for probate.
Given the amount of responsibility an executor has, they must have capacity to apply for a Grant of Probate. If an individual’s capacity is in doubt, the same two-stage capacity test (mentioned in Blog 1) is used and they should be able to demonstrate their understanding of the role of an executor, the nature and purpose of a Will and what probate is.
What happens if an individual lacks capacity to act as an executor?
If an individual lacks capacity to act as an executor, probate form PA14 is used to report to the Probate Registry that the individual has lost mental capacity to manage the deceased’s estate. This form is similar to a COP3 (mentioned in Blog 1) but is a medical certificate that must be completed by an eligible medical professional.
Before the Grant of Probate is obtained:
If the executor lacks mental capacity at the time of the application for a Grant of Probate, they cannot apply for the Grant.
If the Will names a substitute executor, that person can simply take over the incapacitated executor.
Where there are multiple executors named in the Will, the other executors should apply for a Grant of Probate with power reserved to the incapacitated executor. This means the executors can continue to administer the deceased’s estate without the need for the incapacitated executor’s approval.
If the incapacitated executor is the sole executor, an administrator will be appointed in order of rank as per the Non-Contentious Probate Rules 1987, who will apply for a Grant of Letters of Administration (with Will annexed). Those capable of being appointed include anyone named as the incapacitated executor’s attorney under a lasting power of attorney or court appointed Deputy (provided the Deputy has sought authority from the Court of Protection to act on the executor’s behalf).
After the Grant of Probate is obtained:
If a sole executor loses capacity after the Grant of Probate has been issued, the Grant of Probate will not be revoked. Someone else must be appointed in their place who will apply for a new Grant allowing them to take over the administration of the estate.
An attorney appointed by the incapacitated executor (before they lost capacity) or Deputy appointed by the Court of Protection (provided the Deputy seeks authority from the Court of Protection), can act in the place of the incapacitated executor.
How we can help
We have a wealth of experience drafting Wills and making applications to the Court of Protection. If this is something you need assistance with, please contact us.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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