Do I need a new Will if one of my executors dies before me?

Do I need to make a new Will if one of my executors dies before me?

There can be some misunderstanding and a bit of confusion about what happens if one of the executors to your Will dies before you, so here we will clear that uncertainty up and explain the effect the death of an executor has on the validity of a Will.

An executor can be a beneficiary of your Will, although they must be over the age of 18. In fact is is very common for someone’s spouse to be made both beneficiary and executor.

However, a word of caution:- people who accept the position of executor often don’t fully understand what the role involves. It can be more difficult than many people think and few realise that they are personally liable if they don’t follow the rules and also that they can be sued by the beneficiaries. That is one of the reasons we recommend appointing a professional firm as either executor or co-executor.

It is usually good practice to appoint more than one executor just in case an executor dies before you. Up to four executors can be named and reserve executors, also known as substitute executors, can also be appointed.

executor-of-a-will
It is essential to have at least one executor

What happens if an executor dies before me?

If an executor dies before you, or ‘pre-deceases’ you in legalese, it will not invalidate your Will. That in a nutshell is the answer to the question do I need to make a new Will if one of my executors dies before me?

However, where an executor predeceases it is important to consider if there are any other living executors. If the Will names another executor and they are still living then it will be possible for that executor to apply for probate. However if all named executors have died then court rules are applied to determine who the executor shall be, such as a beneficiary under the Will. That is another reason that we recommend appointing a professional firm as either executor or co-executor.

So, to summarise, while the death of an executor doesn’t invalidate a Will, you may wish to review your Will and make a new one if you want to have complete control over who your executor(s) will be.

The Difference Between Grant of Probate and Letters of Administration

What’s the Difference Between Grant of Probate and Letters of Administration?

There is some confusion and misunderstanding about the probate process, so here we will explain the difference between a grant of probate and letters of administration.

When an individual dies their assets including any property that they own, their bank accounts, and all personal possessions that they leave behind are known as their estate. To be able to deal with the deceased’s estate it will be necessary to obtain legal authority from the Probate Registry.

This legal authority that is issued by the Probate Registry is called a Grant of Representation which will allow whoever is dealing with the estate to close bank accounts, cash in investments and to sell or transfer property. The Grant of Representation comes in two different forms – either a Grant of Probate where an individual dies with a valid will or what is known as Letters of Administration, if the individual dies without a will.

Grant of Probate

A Grant of Probate will only be issued to the executors that are named in the Will. Once the executors have got the Grant of Probate they have the legal power to deal with the estate, and they can start to cash in assets and transfer them to the beneficiaries named in the Will. Some financial institutions may need to see a copy of the Will and the Grant of Probate before they release any funds as they need to be sure that the Will is valid and the named executors are the correct people responsible for dealing with the estate.

The Grant of Probate is legal confirmation that the Will is valid. Once the Grant has been issued, it means that the Will has been officially registered and the executors named in the Will are the only ones who have authority to deal with the estate.

Probate-Form
Official Probate Form

Letters of Administration

Letters of Administration are similar to a Grant of Probate, but are issued instead to the next of kin of an individual who dies without a Will. Letters of Administration is the document issued by the Probate Registry to the administrators authorising them to deal with the estate. The authority to do this is not automatic, and it may be necessary to apply to the Court for Letters of Administration to confirm an entitlement to manage an estate, as there are certain financial institutions that require this.

This can cause problems if, for example, family members cannot agree who would be the best person to deal with the estate. Where there are such disputes, it is normal practise for the Court to get involved, and the financial costs involved in this can soon mount up.

Letters of Administration might also be issued where there is a valid Will, but the Executor named in the Will is not applying for a Grant of Probate. This could be because they do not want to act as executor, are not capable of doing so, or they have already passed away. Where this is the case, it is common for one of the main beneficiaries in the Will to apply for Letters of Administration instead.

Probate Registries

The offices that issue Grants of Probate and Letters of Administration are known as Probate Registries, and there are twelve such offices in England and Wales. The probate registry is responsible for making sure that the will is valid and the applicant is entitled to handle the estate of the deceased.

A probate registry decides the legal validity of a deceased person’s Will and grants its approval, also known as granting probate, to the executors. This acts as proof that the executors have the authority they need to handle the estate of the deceased person.

When making a Will, you should think long and hard about the appointment of your executors. An executor needs to have the capability of managing a potentially complex process that can take a long time to complete.

How To Choose An Executor

How To Choose An Executor

Choosing an executor is an important decision, but what exactly is an executor and what does an executor do? According to a number of dictionary definitions, an executor is someone who performs, carries out or executes some duty. An executor should not be confused with an executioner!

executor-of-will
Executor – not Executioner

What is an executor of a Will?

In the legal context of someone’s Last Will and Testament, an executor is the person term who is appointed to carry out the instructions of someone’s Will. An executor’s responsibilities are many and varied and include applying for, and then dealing with, probate; ensuring the deceased’s debts and taxes are paid and distributing the estate to the beneficiaries named in the Will, in accordance with the instructions in the Will.

That sounds straightforward enough but it can take a fair amount of time and can involve making some difficult decisions, such as negotiating the sale of property so that the beneficiaries named in the WIll will inherit the proceeds.

What makes a good executor?

Executors need to be trustworthy, good with responsibility, able to deal with administrative tasks and able to make difficult decisions at a stressful time. The executor must be comfortable with financial matters and have a strong enough character to ensure that everyone is treated fairly and according to the wishes in the Will. As well as being trustworthy and financially literate an executor should be good at liaising with different people and organisations and able to deal with stress.

Who can be an executor?

Anyone over the age of 18 can be an executor, as long as they are mentally competent. An executor can be a beneficiary of the will, and this is very often the case. Many people choose their spouse or partner, their siblings or their children as executors of their Will.

Some people choose close friends or business associates to be their executor, and some choose a “professional executor” such as a financial adviser or a specialist trust company and some choose the family solicitor although this is becoming less commonplace as the benefits of online will writing become more apparent.

Because they do not wish to overburden their loved ones, many of our customers appoint two executors: a relative or close friend and a “professional executor”. If a “professional executor” is chosen, it is recommended that they belong to an organisation that is regulated.

How many executors do I need?

Up to four executors can be appointed, but as they often have to act together, having so many is not practical. We recommend having either one or two executors. We also recommend naming a reserve or substitute executor in case one of your first choice executors are, for any reason, able to act.

Should an executor be paid?

In some countries, most notably the United States, an executor is automatically entitled to compensation for their services. This is not the case in the UK, although compensation can be directed with the Will. If a “professional executor” is used, they will expect to be paid. This is where many solicitors let their profession down by charging fees which can be hard to justify. A typical solicitors’ fee is 4% of the value of the estate, which doesn’t sound much, but it amounts to a bill of £20,000 on a £500,000 estate. Other “professional executors” would normally charge less than half this amount.

In Summary

Appointing the right executor is an important decision, and is one that should be discussed with the potential executor to make sure that they understand what is involved, and agree to it.

It may be wise to show them this Guide To Probate.

If you are ready to write a Will online it is essential that you appoint at least one executor – and our online will writing tool will help you do this – in fact it’s foolproof – it won’t let you complete your Will unless you have chosen at least one executor.