PR Unable or Unwilling to Act

Question 1

When is a PR unable to act?

Answer 1

If they are pre-deceased, a minor, lack capacity, or are a former spouse/civil partner.

Question 2

Who can power be reserved to?

Answer 2

Minors or those lacking capacity.

Question 3

What if one executor is unable to act but others are available?

Answer 3

Remaining executors can apply, but must explain why others are not applying.

Question 4

When is a PR considered unwilling to act?

Answer 4

When they choose not to act.

Question 5

Formal options for a PR unwilling to act?

Answer 5

1) Renunciation
2) Reserving power
3) Appointing an attorney.

Question 6

How does a PR renounce their position?

Answer 6

By signing and submitting a form of renunciation.

Question 7

Can a PR change their mind after renouncing?

Answer 7

Only with court approval, otherwise it is final.

Question 8

When can a PR not renounce?

Answer 8

If they have intermeddled with the estate.

Question 9

What is intermeddling?

Answer 9

Taking steps that indicate acceptance of the role (beyond acts of common humanity).

Question 10

Examples of acts of common humanity?

Answer 10

Arranging the funeral, securing assets.

Question 11

What is reserving power?

Answer 11

Executor retains the option to apply for probate later.

Question 12

What must exist for PR to reserve power?

Answer 12

At least one other executor taking out the grant.

Question 13

Can a PR who has intermeddled still reserve power?

Answer 13

Yes.

Question 14

What must a PR take out to act after reserving power?

Answer 14

Grant of double probate.

Question 15

How is reserved power recorded?

Answer 15

Executor applying for grant must note it in the grant.

Question 16

What is appointing an attorney?

Answer 16

Appointing another person to act on their behalf.

Question 17

For how long can an attorney act after grant is issued?

Answer 17

For up to 12 months.

Question 18

When can attorney act before grant is issued?

Answer 18

Via parallel application for letters of administration (with will) with other executors.

Question 19

What if all executors are unable or unwilling to act?

Answer 19

Grant of letters of administration (with will) would be required.

Question 20

When is a person not able to act as administrator?

Answer 20

Lack beneficial entitlement, are a minor / incapacitated / dead

Question 21

Can administrators reserve power?

Answer 21

No.

Question 22

Options for administrator with best right who does not wish to act?

Answer 22

Renounce or appoint an attorney.

Question 23

Can administrator renounce even after intermeddling?

Answer 23

Yes.

Question 24

How does an administrator renounce?

Answer 24

By signing and submitting a renunciation form to the probate registry.

Question 25

Can an administrator appoint an attorney?

Answer 25

Yes.

Question 26

What does administrator need to do to appoint attorney? How long can an attorney act?

Answer 26

Must notify other administrators. Can delegate functions for up to 12 months.

Question 27

How does administrator appoint attorney before appointment?

Answer 27

Application under Rule 33 to delegate power to apply for grant.

Question 28

What if entitled person refuses to act and refuses to renounce, or executor intermeddles but won’t apply?

Answer 28

Court can: 1) Require person to apply, 2) Remove right to apply, 3) Authorise another person to administer.