Since a Will may be written many years before the testator’s death, it is possible that the executor named in the will might have died before them. The question arises what happens in this situation?
Where the executor dies before the testator and before probate has been granted it is usual for the beneficiaries receiving the largest share of the estate to take over the deceased executor’s responsibilities. There are a set of rules which set this out, known as the Non-Contentious Probate Rules 1987.
An awkward situation may arise if the estate is being divided equally between a large number of beneficiaries as they all have an equal right to take on the executor’s role. However, for practical reasons it’s usual in this situation for the group of beneficiaries to select just 2 to deal with the probate and the estate administration.
Where the executor dies after probate has been granted and they have not completed the administration of the estate, you would look to any other executor or executors named in the Will, who hasn’t previously renounced their responsibilities, to continue the process as per normal.
However, when a sole executor dies things become a little more complex. In this situation it is their executor, in other words the executor’s executor, that is tasked with completing the administration of both estates. Effectively they are now dealing with probate and the administration of the estates of the first to pass away and that of the deceased executor.
In the case of the first deceased’s estate it will be necessary for the original grant of probate to be revoked by the Probate Court and a fresh application made by the new executor for a grant of probate in their name. With this they can then complete the administration of the first deceased’s estate.
In respect of the deceased executor’s estate a separate grant of probate will be required in order to deal with their estate.
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