The role of an executor carries great responsibility. When someone passes away, their executor is tasked with managing the estate, applying for probate, paying debts and distributing assets according to the will. But what happens if the executor themselves dies before the process is completed? This situation can create uncertainty, delays and, in some cases, disputes between family members. In the UK, the outcome depends on several factors: whether the executor died before or after the grant of probate was issued, whether there are other surviving executors, and the wording of the will itself. Understanding how the law deals with this problem can provide reassurance and clarity for families going through an already difficult time.
An executor is the person (or people) appointed in a will to administer the estate. Their duties include locating the will, applying for a grant of probate, valuing assets, settling debts, paying inheritance tax, and distributing the estate in line with the deceased's wishes. Executors are legally responsible for ensuring the estate is dealt with correctly, which can take months or even years in more complex cases.
Because probate often takes considerable time, there is always the possibility that an executor may pass away before their role is finished. The law provides specific mechanisms to ensure the estate can still be administered.
If an executor dies before applying for probate, the situation is relatively straightforward. The law treats them as though they had “renounced” their appointment, meaning they never took up the role.
In this case, responsibility passes to the next executor named in the will. If there are multiple executors named, the remaining executors can continue with the application for probate without difficulty. If there is only one executor named in the will and they have died, the responsibility passes to the person entitled under what is called the “chain of representation” or, failing that, to someone else with the right to administer the estate, such as a beneficiary.
Matters are more complicated when an executor dies after a grant of probate has been issued. At this point, they have already taken up the role and begun administering the estate. The outcome depends on whether there are surviving executors who were also named in the will and included in the grant of probate.
If there are surviving executors, they continue with the administration of the estate. The death of one executor does not invalidate the grant, and the remaining executors have full authority to act. However, if the deceased executor was the sole executor appointed, or if all executors have since died, the “chain of representation” comes into play.
The chain of representation is a legal principle that ensures there is continuity in the administration of estates. If a sole executor dies after probate has been granted, the executor of their estate effectively steps into their shoes and takes over responsibility for the original estate.
For example, imagine that John dies, leaving his daughter Mary as the sole executor of his will. Mary obtains probate and begins dealing with John's estate, but before finishing, she also passes away. If Mary left a will appointing her son Peter as her executor, Peter would then take over responsibility for completing the administration of John's estate, as well as administering Mary's estate.
This can create a situation where one person is responsible for managing multiple estates at the same time, which can be complicated and sometimes overwhelming.
Sometimes the chain of representation breaks. This happens if the executor who has died did not leave a will, or if their executor is unwilling or unable to act. In such cases, the responsibility for completing the original estate passes to someone else entitled under the rules of priority for probate applications.
Usually, this will be the residuary beneficiary of the estate - the person or people who are due to inherit the remainder once debts and expenses have been settled. If there are multiple residuary beneficiaries, they may apply together, or one may apply with the agreement of the others.
If there are no residuary beneficiaries, or if those beneficiaries are minors, other relatives may step forward to apply, following the strict order of entitlement under the probate rules.
The death of an executor before probate is completed can cause practical difficulties. It almost always results in delays, as the new applicant must prepare a fresh application and sometimes seek a new grant of probate. This process can add months to the administration of the estate.
There can also be disputes between family members. For example, suppose the executor's own executor inherits the right to deal with the original estate under the chain of representation.
In that case, other beneficiaries of the original estate may feel uncomfortable with someone outside their family managing matters. This is particularly sensitive if the new executor also has conflicting interests as a beneficiary of the deceased executor's own estate.
Costs are another concern. Additional legal fees are usually incurred when a second probate application becomes necessary, especially if there are disputes about who should take over.
Finally, there is the issue of record-keeping. If the deceased executor did not leave clear notes or accounts of what stage they had reached, the new executor may find it difficult to pick up where they left off.
Testators – those making a will – can reduce the risk of complications by appointing more than one executor. Having at least two executors means that if one dies before or during the probate process, the other can continue without disruption.
It is also wise to appoint substitute executors in a will. These are people who step in if the named executors are unable or unwilling to act. Solicitors often recommend appointing both a professional executor, such as a solicitor or accountant, alongside a family member to provide continuity and professional oversight.
For executors themselves, keeping clear records is essential. Maintaining an organised file of correspondence, valuations, receipts, and decisions ensures that if something happens to them, the person taking over can easily understand the progress made.
Finally, families should seek professional advice early if an executor dies. Solicitors specialising in probate can advise on whether a new grant is required, who is entitled to apply, and how best to avoid conflict between beneficiaries.
In rare cases, all named executors may have died or be unwilling to act, and no substitutes have been appointed. Where this happens, the estate is treated as though no executor had ever been named, and responsibility passes to those entitled under the rules of intestacy for probate applications.
The court can issue what is called “letters of administration with will annexed” if there is still a valid will but no executor available. This allows the estate to be administered in accordance with the will's terms, even though the executor named in it is no longer available.
The death of an executor before completing probate can be unsettling, but the law provides mechanisms to ensure estates are still administered. If the executor dies before applying for probate, the responsibility simply passes to surviving executors or, if none, to someone else entitled under the probate rules. If the executor dies after probate has been granted, the chain of representation allows their own executor to step in and complete the original administration. Where the chain breaks, beneficiaries or other relatives may apply.
Although these rules ensure estates do not remain unmanaged, the process can cause delays, additional costs, and sometimes disputes. The best way to avoid such difficulties is careful planning when drafting a will, by appointing multiple executors and substitutes. For families dealing with the sudden death of an executor, taking professional legal advice at an early stage is the most effective way to ensure the estate is handled smoothly and in line with the law.
If you are dealing with the unexpected death of an executor or need advice on how to continue the probate process, Premier Solicitors can guide you every step of the way. Our expert probate team can explain your options clearly, handle the necessary applications, and ensure the estate is administered efficiently and lawfully.
We understand how stressful estate administration can become when complications arise. By instructing us, you gain the reassurance that the process will be managed professionally, with your loved one's wishes respected and your interests protected.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.
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