Executor incapable

[sigma]

What happens when the executor or executrix of a will cannot carry out their duties due to their mental state or that they are deceased

[dzug2]

There is a pecking order of other people who are entitled to apply for probate in their place

[sigma]

So, what's the order

[Barmaid]

Have they already started administering the estate and then become incapable or did this happen before the testator died. If the former it's complicated. If the latter, the next person in line is the trustee of a residue, followed by a residuary beneficiary, followed by a specific legatee, followed by a pecuniary legatee.

[Buenchico]

If no reserve executor/s is/are named in the will, the nearest relatives of the testator can apply for a 'grant of letters of administration with the will annexed' (rather than for a grant of probate). Unlike executors, administrators have no legal authority until the grant of representation has been made.

The 'pecking order', referred to by Dzug2 is as follows. (If anyone, who is entitled to apply for the grant, does not wish to do so, he/she can renounce that entitlement, so that the next person down the list then takes over that entitlement):
1. Spouse of the deceased.
2. Any child of the deceased. (Grandchildren can apply for the grant if their parent, who would have had the right to apply, is deceased).
3. Either parent of the deceased.
4. Any full brother or sister of the deceased. (Nephews and nieces can apply if their parent, who would have had the right to apply, is deceased).
5. Any half brother or sister of the deceased. (Their children can apply if they are deceased).
6. Grandparents of the deceased.
7. Aunts or uncles of the deceased. (Cousins can apply if their parent, who would have had the right to apply, is deceased).
8. Aunts and uncles of the half blood. (Their children can apply if they are deceased).

Chris

[Barmaid]

Chris, I am sorry, but you are wrong. The list you have specified applies in cases where the deceased left no Will - that is the order specified under intestacy. If the deceased has left a Will but the named executor is unable/unwilling to act, the next is line is the res ben. The family don't get a look in (unless they are the residuary beneficiary).

[Buenchico]

What then, Barmaid, is a 'grant of letters of administration with the will annexed'? It clearly doesn't refer to intestacy, because of the will being annexed.

[ladybirder]

Chris what happens if nobody wants to do it?

[Barmaid]

A GoLoA with Will is when there is a will but no executor appointed or none willing or capable to act. It is taken out by the people in my list (which does go on a bit longer than that).

A Grant of Letters of Administration (on its own) is a Grant on intestacy.

[dzug2]

If nobody wants to do it it doesn't get done - unless a creditor of the estate decides to force the issue to recover his debts.

[bednobs]

so does that mean BM if the dog's home is the only beneficiary, they have to be the executor?

[Barmaid]

They don't have to be since no-one can compel anyone to act in an estate (unless they are named as an executor and have intermeddled). But generally, if a charity is named as a residuary beneficiary and the executor can't/won't act, the charity will take out the Grant in its own name (if it has Trust Corporation status) or appoint an attorney to take out the Grant on its behalf. When I worked in the charity world, I used to actively persuade certain executors to renounce on the basis that I had the systems and the knowledge and could do it cheaper.

[Barmaid]

Non Contentious Probate Rule 20 covers the situation if there is a Will but no executor.

NCPR Rule 22 covers the position on intestacy.

Link here - http://www.legislatio...87/2024/contents/made