The clear answer according to Samantha Skelding, a solicitor at Fraser Dawbarns, is “more than one”. Here she explains the reasons why.
Choosing your executors is an important part of making a Will. They will be responsible for dealing with your affairs after your death and administering your estate as set out in your Will.
Many people appoint one or more relatives or close friends to act as executors. Others prefer to appoint a professional, such as a solicitor, especially in circumstances when there could be arguments between family members. Occasionally people who haven’t taken legal advice appoint only one executor and fail to appoint replacement executors. This can be risky if the sole executor dies at any point before completing the estate administration.
If the person making the Will (known as the ‘testator’) outlives the executor named in the Will, then whoever is responsible for administering the estate will depend upon the terms of the Will. If replacement executors have been appointed, then this responsibility will fall to them.
If, however, all named executors have died there is an official legal hierarchy of who is entitled to administer the estate.
In most cases, the beneficiaries who are receiving the largest proportion of the residuary estate would be entitled to act as ‘administrator’. If more than one residuary beneficiary is entitled to an equal share of the estate, they would all have equal entitlement to act.
No more than four people can act as executors during the administration process. If more than four named beneficiaries are entitled to an equal share of the residuary estate, the number of executors must be limited to four. The most obvious likely source of problems here is if there is a family with more than four children who are to inherit in equal shares.
The Grant of Probate is the document that gives executors authority to administer the deceased’s estate. If this has already been issued by the Court but the named executor then dies, what happens next will depend on whether they have made their own Will. If they have, then the first executor’s executors will find themselves in control of dealing with both estates. This falls under something called the Chain of Representation and may not sit at all comfortably with other family members.
If the Executor who died did not leave a Will there can be no chain of representation established so the official legal hierarchy comes into effect (non-contentious probate rules). This means that it is likely that the beneficiary or beneficiaries who are receiving the largest proportion of estate will have the right to deal with the original Estate. The rules of intestacy will be decided who deals with the Estate of the deceased Executor.
The message from this is clear. If you are making a Will for the first time, choose between two and four executors. If you have already made a Will with only one executor, consider the practicalities of what would happen if he/she died before you or shortly after you but before completing the administration of your estate and decide whether you should change your arrangements. If you would like to discuss your specific circumstances, please contact one of our offices.
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP are always happy to provide such advice.
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