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.

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

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

There is often some confusion and misunderstanding about what happens if one of the witness to your Will dies before you, so here we will explain the effect the death of a witness has on the validity of a Will.

will-witnessing
It is essential to get your Will witnessed correctly

Who can witness a Will

Any adult who has “mental capacity” can witness your Will, as long as they are not a beneficiary, or married to a beneficiary. Legally, the only qualification for your witnesses is that both are over 18 years of age. Since both must see you signing your will, an implied qualification is that neither is blind. By law, your Will needs to be witnessed by two witnesses for it to be valid. It is all about preventing fraud. There is a need for two witnesses to be present at the same time, so that each one can confirm that they watched you sign your Will on a particular day and at a particular place.

What happens if a witness dies before me?

If a witness dies before you, or ‘pre-deceases’ you in legal language, it won’t 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 witnesses dies before me? However, very occasionally it may be the case that when applying for probate, the executor could be asked to provide proof that a witness has died and that their signature is valid. In practise, this is very rare.

When making a Will, it is essential that it is witnessed correctly. That is why for every Will we create, we include a complimentary “Will Signing Guide” to explain the process.

Wills and Probate Glossary

Wills and Probate Glossary

There are many terms that are used in relation to Wills and Probate, and here we explain some of these commonly used wills and probates terms in plain English.

legal-glossary
Legal Glossary
  • Administrator
  • The person who deals with the estate of a person who has died intestate (without a Will).

  • Apportionment
  • The proportionate division of a deceased’s estate between certain beneficiaries.

  • Assets
  • Property, money and other belongings owned by the deceased.

  • Attorney
  • A person, typically a lawyer, but not always, who is appointed to act for another in business or legal matters on their behalf.

  • Attestation
  • Confirmation or verification. It is often used as a term when witnessing a signature.

  • Beneficiary
  • Anyone or any organisation that is entitled to a share of the estate of the deceased.

  • Bequest
  • Any gift left in a Will that is not land or buildings.

  • Capital Gains Tax (CGT)
  • This is a tax on the profit made when selling an asset.

  • Chattels
  • Any movable personal property or belongings that is not used for business. Examples of personal chattels would be ornaments, jewellery, furniture, clothes and so on.

  • Codicil
  • An addition or change made to a Will, for example, to increase a cash legacy.

  • Common Law Spouse
  • There is no such thing as a common law spouse in law.

  • Court of Protection
  • The Court of Protection in English law is a superior court that has jurisdiction over the property, financial affairs and personal welfare of people who lack the mental capacity to make decisions for themselves.

  • Discretionary Trust
  • A trust where the trustee has the full power to decide when and to which beneficiaries are to receive their capital.

  • Domicile
  • Domicile is a concept of general law. Domicile is distinct from nationality or residence. Broadly speaking your domicile is the country where you have your permanent home, and you can only have one domicile at any given time.

  • Estate
  • All the possessions of the person who has died, including all property, cars, investments, money and other belongings.

  • Executors
  • The persons or organisations appointed in the Will to administer an estate.

  • Gift
  • A transfer from one person to another without fair compensation in return. A legacy left to others in a Will.

  • Grant of Probate
  • The document issued by the Probate Registry to the executors to authorise them to deal with the estate.

  • Grant of Representation
  • The grant is a legal document issued by a court which confirms that the executor has the authority to deal with the deceased person’s assets. This document must thus be obtained before the executors can start closing accounts and liquidating assets.

  • Guardian
  • The person appointed by a parent or a court to have parental responsibility for a child under the age of 18 years.

  • Inheritance (Provision for Family and Dependants) Act 1975
  • This is the act that allows people to bring a claim for inadequate provision under the terms of a Will or intestacy. The act makes provision for empowering the court to make orders for provision for the spouse, former spouse, child, child of the family or dependant of that person.

  • Inheritance Tax (IHT)
  • The tax that is to be paid when the total estate of a person who has died is more than the current inheritance tax threshold.

  • Intestacy
  • The name for the situation which arises when someone dies without having made a legally valid Will. Their estate is then distributed according to rules laid down in law governing intestacy.

  • Insolvency
  • When there is a shortfall of funds to meet all liabilities at the time they are due.

  • Joint Tenancy
  • Property that is owned by two or more people in equal shares. Joint tenants are usually husband and wife and in the event of the death of the first person, the share of the property they owned would pass automatically to the surviving owner and would do so outside the terms of any Will.

  • Last Will and Testament
  • A legal document that lays out the way a person wishes to have their estate distributed upon their death.

  • Lasting Power of Attorney (LPA)
  • A Lasting Power of Attorney can relate to someone’s property and affairs or their personal welfare. Their purpose is to meet the needs of those who can see a time when they will not be able to look after their own personal, financial or business affairs. The LPA allows for appropriate arrangements for family members or trusted friends to be authorised to make decisions on their behalf.

  • Laws of Intestacy
  • The Laws of Intestacy dictate how an estate is distributed should a person die without leaving a legally valid Will.

  • Leasehold
  • A form of property tenure where a person buys the right to occupy land or a building for a given length of time. Ownership of the property will pass to the landlord when the lease comes to an end.

  • Legacy
  • A gift of money (usually a specific amount) left to someone in a Will.

  • Letter Of Intent
  • An appendix to a Will detailing specific wishes not covered by law. This would typically include preferred funeral arrangements.

  • Letters Of Administration
  • Letters of Administration are granted by a probate registry to appoint appropriate people to deal with a deceased person’s estate where property will pass under Intestacy Rules or where there are no executors living (and willing and able to act) having been validly appointed under the deceased’s Will.

  • Liabilities
  • The debts that need to be settled by the estate following the death of the deceased.

  • Memorandum of Wishes
  • Where a gift in a Will is coupled with a (non-binding) wish that it is to be distributed in accordance with wishes set out separately elsewhere.

  • Minor
  • A person under the age of 18.

  • Next of Kin
  • The nearest blood relative of the deceased. When a person dies intestate the next of kin are the people entitled to the estate, in accordance with the Rules of Intestacy.

  • Office of the Public Guardian (OPG)
  • The Office of the Public Guardian is a government body that protects the private assets and supervises the financial affairs of people who lack mental capacity for making decisions. The OPG works closely with the Court of Protection.

  • Parental Responsibility
  • The rights and responsibilities that a parent has towards a child and their property

  • Pecuniary Legacy
  • A gift of a fixed sum of money.

  • Post Mortem
  • A medical examination of the body to determine the cause of death.

  • Potentially Exempt Transfer
  • A gift made during one’s lifetime that is exempt from Inheritance Tax if the donor lives for seven years after making the gift.

  • Power of Attorney
  • Authorisation to act on someone else’s behalf.

  • Predeceased
  • Someone who dies before the person who has made the Will.

  • Probate
  • Probate is the official process that gives the executors of a Will the right to deal with the deceased’s assets and property. It acts as proof that the executors have the authority they need to handle the estate of the deceased person. This legal procedure must be undertaken to establish that a Will is genuine and valid.

  • Probate Registry
  • A court within the family division of the High Court, that deals with probate matters. 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.

  • Residuary Estate
  • What is left of the estate after all liabilities and expenses have been paid.

  • Revocation
  • The term used when the testator decides to legally cancel their Will completely and invalidate the previous Will.

  • Tenant for Life
  • Property that is owned by two or more people. Joint tenants are usually husband and wife and in the event of the death of one tenant, the other automatically becomes the owner of the whole property. In these situations it is not possible for a tenant to make a gift of their share of the property to someone else as it is not theirs to give.

  • Tenants in Common
  • Property that is owned jointly but each joint owner has a distinct share forming part of their estate on death which does not pass automatically to the surviving tenant.

  • Testamentary Expenses
  • The costs of obtaining the Grant of Probate or Letters of Administration and of administering the estate.

  • Testator
  • The person who sets out his wishes and requests as to how their estate should be divided in the form of a Will.

  • Trust
  • An arrangement set up by Will or deed with the trustees being appointed and given money or assets to hold and manage on behalf of the beneficiaries.

  • Trustee
  • Someone who is given the legal responsibility to hold any assets until nominated beneficiaries meet certain criteria set out in the deceased’s Will e.g. until a beneficiary reaches the age of 21. Trustees normally have powers to distribute monies and have full power to sell and invest. Trustees have duties to be loyal, prudent, impartial and to inform the beneficiaries of the trust.

  • Will
  • A legally binding set of instructions indicating how someone wishes to dispose of their assets upon their death.

  • Witnesses
  • The persons who must be present to see the testator sign the Will. They must also sign the Will themselves and should not be beneficiaries of the Will.

    We hope this Wills and Probate glossary guide has been useful. If you want to find out more you can check this comprehensive Wills and Probate Glossary. Meantime, we hope this guide will help you create a Will.