Wills 6 Flashcards
What is a personal representative?
An executor or administrator
How is an executor appointed?
- By an express provision in a will or codicil to ‘stand in the shoes’ of the testator, administering their estate according to the law and provisions of the will. * More than one can be appointed* When appointing a sole executor, the will may (and should) appoint a substitute, in case the first named executor dies before the testator or is otherwise unable or unwilling to act when the testator dies.
How is an administrator appointed?
By the court when there is no will or when no executor is able or prepared to act.
Who can be an executor?
- Any person but it is sensible for the testator to choose someone who will be both willing and able to take up the position, it is often a spouse. * If the estate includes a business or literary works where specialist knowledge and expertise could be needed, a specialist executor might be a good idea e.g. accountant, copyright specialist.* Note: neither a minor nor a person who lacks mental capacity will be granted probate.
If someone appointed their spouse to be their executor and the marriage is dissolved or annulled, can they still be executor of the estate?
- The 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.
Does an executor have to accept office if appointed?
No* they are free to renounce their rights to a grant of probate provided they have not accepted office i.e. intermeddled in the estate. * Alternatively, they may have ‘power reserved’
How does an executor accept office?
By taking a grant of probate or by ‘intermeddling’ in the estate, i.e. doing something which shows an intention to accept office e.g. notifying the deceased’s bank of the death.* Note: the consequence of this is they lose their right to renounce.
How does an executor renounce office?
- Renunciation be in writing, be signed by the executor, and contain a statement that the person has not intermeddled. * It must be signed by a disinterested witness. * It must be filed at the Probate Registry, normally by the PRs who are applying for a grant.
Can an executor renounce part of the executorship?
No it is an ‘all-or-nothing’ position
If an executor renounces its executorship, can it be reclaimed?
No, unless the court allows them to do so.
If a trustee is appointed as executor and they renounce the executorship, does this affect the trust?
No, 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 for an executor to have ‘power reserved’
- This can be done instead of renouncing* This means they 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
A will names E as executor and S as substitute. E is very busy and doesn’t want to be the executor. However, she’s willing to step in if necessary so she asked for power to be reserved. S excepts office and starts to administer the estate, but then S dies before the administration is finished. Does E automatically become executor?
No, but she can apply for a grant of probate and become executor to finish the estate administration.
