Administration: PR unable or unwilling to act Flashcards
When is an executor unable to act?
Pre-deceased the testator, or survived the testator but died before making the grant.
They are a minor
They lack capacity
Are the testator’s former spouse/civil partner
Where an executor is unable to act, what should the remaining executors do?
The remaining executors can apply for the grant but need to explain to the probate registry why all of those appointed are not applying.
If an executor is unable to act because they are a minor, what can the other executors do?
If an executor is a minor, probate can be issued to the other executors with power reserved to the minor, who is entitled to make an application upon reaching 18. Power may also be reserved to an executor who lacks capacity.
If an executor is unwilling to act what are their options?
a) Renunciation
b) Reserving Power
c) appointing an attorney
If an executor unwilling to act elects for renunciation, what is the process?
- They must sign a form of renunciation.
- Those applying for the grant must submit the form to the probate registry as the reason as to why they are not making the application.
- The renunciation will be noted on the grant when it is issued.
- Executor cannot change their mind without court approval.
What does it mean if an executor has intermeddled with an estate?
It means they have taken steps to accept their appointment and are fulfilling their duty to administer the estate. Examples include:
*obtaining, receiving or holding the deceased’s assets
*paying debts, selling assets, disposing of personal property
Acts of common humanity such as arranging the funeral or taking steps to secure the estate do not amount to intermeddling.
If an executor has intermeddled with the estate can they renounce?
No, they cannot renounce if they have intermeddled with the estate.
If an executor decides to reserve power what is the process?
- There must be at least one other executor who does take out the grant of probate.
- An executor who has intermeddled can still reserve power.
- To act later, the executor who reserved power can apply for grant of double probate to run concurrently with the original grant. Applying for a grant of double probate is only appropriate if the administration is not yet complete.
- There is no form of reservation
- The executors who are applying for probate must give notice of their intention to apply to the executor to whom power is reserved.
- The reservation is noted on the grant.
If an executor has intermeddled can they still reserve power?
Yes.
If an executor decides to appoint an attorney, what is the process?
After the executor has obtained a grant: a PR may delegate their functions to an attorney for a maximum of 12 months. This can be renewed if needed. Notice should be given to the other executors.
Before a grant has been obtained: here the executor is delegating the power to apply for a grant. As the attorney is not named in the will they cannot apply for a grant of probate. Instead, if other executors are applying, the executors would apply for a grant of probate and the attorney would make a parallel application for letters of administration (with will).
What happens if all executors are unable to act?
If there is no executor who is able or willing to act then a grant of probate cannot be issued.
Instead a grant of letters of administration (with will) would be appropriate and an administrator would be appointed under NCPR 20.
What happens if an administrator is unable to act?
If the deceased left a valid will which does not appoint willing or able executors, or the deceased died intestate, administrators will be appointed either NCPR 20 or 22.
What are the options to an administrator unwilling to act?
They can renounce or appoint an attorney (no right to reserve).
If an administrator decides to renounce what is the process?
- Renunciation is final and because there is no right to reserve power a person must think carefully before renouncing.
- A form of renunciation must be signed and submitted to the probate registry with the application for the grant.
- The renunciation will be noted on the grant.
- A potential administrator may renounce at any time before the grant is issued. They are not prevented from renouncing even if they have intermeddled with the estate.
- An executor who renounces their right to apply for a grant of probate, does not automatically renounce their right to apply as administrator under NCPR 20/22 so they may may need to renounce both rights.
Can an administrator renounce even if they have intermeddled?
Yes.
