It is an unthinkable scenario but it is important to understand and be prepared for what happens if the Executor of a Will dies or is incapacitated.
What if the Executor Dies Before the Will Maker?
At the time a Will Maker makes their Will, the person they choose to be their Executor may be in good health. By the time the Will Maker passes away, the Executor may have fallen into poor health and passed away. Furthermore, the sad reality in life is that anyone can die unexpectedly.
'Backup' Executors can be appointed in the Will in case the Executor dies. If the primary Executor of the Will dies before the Will Maker, the backup Executor(s) will usually serve as the Executor once the Will Maker dies and the Estate will be administered as usual. If the Will Maker has not appointed a backup Executor and the primary Executor passes away, it is advisable for the Will Maker to amend their Will to appoint new Executors and backup Executors.
If all of the Executors of the Will have died, and there are no backup Executors appointed in the Will, another person can apply to the Supreme Court of Victoria to be the Administrator of the Estate. The Court will usually grant administration to the Beneficiary with the largest interest in the Estate. This Administrator then carries out the Will as if they were appointed Executor. This is called "Letters of administration with the Will annexed".
If the Executor dies before the Will Maker, the Estate could end up being administered by someone unknown to the Will Maker or by someone the Will Maker might not trust as much as the original preferred Executor. Amending the Will to appoint backup Executors can avoid this circumstance.
What if the Executor Dies Soon After the Will Maker?
The Executor may die after they have obtained a Grant of Probate from the Court as evidence of their authority to administer the Estate. If an Executor obtains Probate and dies, and there are no other Executors with a Grant of Probate, then the deceased Executor's own Executor becomes the Executor of the Will Maker's Estate with all of their rights, duties and responsibilities. The chain is broken if the deceased Executor left no Will, did not appoint an Executor or no Grant of Probate was granted in respect of their Will.
What if the Executor is Incapacitated?
The Executor may lack capacity at the time the Will Maker passes away or lose capacity in the course of administering the Estate. For instance, by the time the Will comes into effect, the Executor may have become very elderly and unable to carry out the wishes of the Will Maker. The Will Maker may have appointed the Executor decades ago when life expectancy was lower, but now finds that they have lived longer than they thought they would. While this might be cause for celebration, it can cause difficulties if the Executor has lost capacity by the time the Will Maker passes away.
In these circumstances, another person may apply to the Court to obtain a Grant of Administration. If the Executor has already obtained a Grant of Probate and afterwards is unable to act, application will need to be made to the Court for the Executor to be discharged of their duties so that an Administrator can be appointed.
A Will can be drafted to ensure a specified backup Executor takes over administration of the Estate when the primary Executor is incapacitated before Probate has been granted. This allows the backup Executor to obtain a Grant of Probate and administer the Estate where the primary Executor is 'unable to act'.
1. Appoint at least one or two backup Executors in your Will in case the primary Executor dies or becomes incapacitated.
2. Review your Will regularly and be aware of the health of your primary Executor. If your primary Executor dies, arrange to amend your Will so that another person is appointed as Executor.
3. Ensure your Will is drafted so that the backup Executor(s) can administer the Estate if the primary Executor is 'unable to act'.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.