What happens when a sole executor dies or loses mental capacity?

When someone writes a will, they typically appoint one or more executors to carry out their final wishes and manage their estate. But what happens if the sole executor – the only person named to handle this responsibility – dies or loses mental capacity? This situation can complicate the probate process, but there are legal mechanisms in place to remedy the situation.

If the sole executor loses mental capacity

Before the testator dies

If the executor becomes mentally incapacitated before the person who made the will (the testator) dies:

• The testator should revise the will to appoint a new executor. This can be done through a codicil, a legal document that amends the original will.
• It’s wise to name substitute or reserve executors in the original will to avoid this issue altogether.

After the testator dies

If the executor loses capacity after the testator’s death but before probate is granted:

• The executor cannot act, and someone else must apply for probate.
• If the incapacitated executor has a Lasting Power of Attorney (LPA) in place, their attorney may be able to apply for a Grant of Letters of Administration with Will annexed, depending on the circumstances and the terms of the LPA.

If the executor loses capacity after the testator’s death but after probate is granted:

• An independent capacity assessment should be undertaken by a specialist to confirm whether the executor’s capacity has been lost.
• If the executor has lost capacity, no more steps can be taken in the estate until another grant is obtained.
• If the incapacitated executor has an LPA in place, their attorney may be able to apply for a further grant (as explained below).

If the sole executor dies

Before the testator dies

• The testator should update their will to appoint a new executor.
• If no action is taken, and the executor dies before the testator, the will remains valid but someone else must be appointed to administer the estate (Rule 22 of The Non-Contentious Probate Rules 1987 governs who has priority to apply).

After the testator dies

• If the executor dies before probate is granted, the court will appoint someone else – usually a beneficiary or next of kin – to act as administrator (there is an order of priority in the Non-Contentious Probate Rules 1987).
• If the executor dies after probate is granted but before the estate is fully administered, the role can pass to the personal representatives of the deceased executor’s estate. This is known as the “chain of representation.” The court prefers the chain of representation not to be broken if possible but alternative executors can be appointed with permission of the court. In this case, any better placed persons under the chain of representation or above in the order of priority would need to be cleared off (ie, step down) first.

What breaks the “chain of representation”?

• If the executor dies without making a valid will.
• If the executor dies before probate is obtained.
• There are other surviving executors in the will that can continue the administration.

When the chain has been broken, it is possible to apply for a further grant to continue the administration of the estate – known as a Grant de Bonis Non Administratis (or “Grant of goods not yet administered”). The above order of priority applies but once issued this grant sits consecutively to the initial grant.

How to prevent these issues

To avoid these complications:

• Appoint multiple executors or name substitute executors in your will.
• Consider appointing a professional executor, such as a solicitor or trust company, especially for complex estates.

This is a complicated area which can give rise to difficult problems in practice when the situation needs to be resolved. Despite how easy it is to avoid the problems, surprisingly we come across the issues raised quite regularly, particularly in relation to home-made wills. It is therefore important to take preventative steps such as having your will professionally prepared and clearly naming more than one executor and/or substitute executors to greatly reduce the risk of problems later. We are specialist in this complex area of law and can assist you with any problems that may arise.