Chapter 6: Personal Representatives Flashcards
How is an executor appointed? What do they do?
By will or codicil to ‘stand in the shoes’ of the testator, administering their estate according to the law + provisions of the will.
Express provision should be included in the main body of the will appointing a named executor, or more than 1 if desired.
Who may be named as an executor?
Anyone, but it is sensible for the testator to choose someone who will be both willing and able to take up the position.
Neither a minor nor a person who lacks mental capacity will be granted probate
What happens if a spouse is appointed as executor, and their marriage is dissolved/annulled?
Appointment usually will be ineffective because the former spouse is treated as having died on the date of divorce or annulment.
However, a contrary intention may be included in the will.
When can a person named as executor renounce their rights to a grant of probate?
A person named as executor is free to renounce their rights to a grant of probate provided they have not accepted office.
Alternatively, an executor who doesn’t wish to act in the estate administration may have ‘power reserved’
How does an executor accept office?
By taking a grant of probate or by ‘intermeddling’ in the estate - doing something which shows an intention to accept office.
What would be regarded as intermeddling?
Selling the deceased’s chattels.
What formalities are required for renunciation of executorship?
A renunciation of executorship must be:
1. In writing,
2. Be signed by the executor, and
3. Contain a statement that the person hasn’t intermeddle,
4. Signed by a disinterested witness
Where must a renunciation be filed?
At HMCTS Probate Service, normally by the PRs who are applying for a grant.
Can an executor renounce part of the office?
No - it is an all-or-nothing position
What is the effect on the executor once they have renounced?
An executor cannot reclaim title to probate unless the court allows them to do so.
What happens if a person appointed as executor and trustee renounces their executorship?
They will remain as trustees despite renouncing the executorship.
They would have to disclaim the trusteeship if they wanted to not act as such.
What does it mean to have ‘power reserved’?
This means that the executor will not be involved for now, but if circumstances change - e.g., another executor falls ill or dies or changes their mind - they can apply for a grant of probate at a later stage.
There would be no automatic substitution
