Executor incapacity or unwillingness to act: who can act as a replacement?

The rules as to who can take up the appointment of personal representative or trustee of a deceased person’s estate differ depending on whether or not the deceased had made a will.

This article explores what happens when an executor or administrator of a deceased person’s estate is unable or unwilling to act. It explains the rules for appointing a replacement, including the differences between estates with a will and those without, and outlines the legal options available when complications arise.

Where the deceased person had made a will

A will typically includes a provision nominating specific individuals(s) to act as their executors, and if applicable trustees, to take control of and administer their estate after their death. The nominated individuals are often family members of the deceased, i.e. a spouse/civil partner or children, or alternatively a professional person such as a solicitor, or a combination if more than one is appointed. Individuals nominated under a will can apply for a grant of probate.

Where a deceased person had not made a will

Where someone has died without leaving a will, they are said to have died ‘intestate’. In those cases, the persons entitled to deal with the estate administration are determined by rule 22 of The Non-Contentious Probate Rules 1987 in the following order:

Whoever is most entitled under the above rule and wishes to deal with the administration of an intestate estate can apply for a grant of representation and thereafter act as administrator of the estate. 

What happens if someone does not want to, or is not able to, act as executor or administrator?

In the case of an intestate estate, if someone with a greater entitlement does not wish to, or is unable to, act as administrator, then a person within the class next in line can apply to do so. Unless there are any objections to this by someone with a greater entitlement than the person applying, a grant will typically be issued to the applicant. Once a grant has been issued, that individual will be entitled to deal with the estate administration as the legal personal representative. 

Complications can however arise. For example, a deceased person could have made a will which appoints specific individuals as their executor(s), but one (or all) of those individuals may lack the requisite mental capacity to take up the appointment. In such a case, if one of the named executors has an attorney appointed under a lasting power of attorney then they can step in to deal with the estate administration on the executor’s behalf. Alternatively, one of the beneficiaries under the will could apply for a grant in place of the named executors.

It's worth noting that, if there is one executor who lacks capacity and another who is able to take up the appointment, then an attorney of the executor lacking capacity has no standing to take up an executor role in their place. Instead, the named individual who is able to take up the appointment will be solely entitled to apply for a grant.

Where the named executors are simply unwilling to act, they can renounce’ their appointment in favour of someone else provided that they have not ‘intermeddled’ with the estate administration. If they have intermeddled, they can only step down from the role of personal representative by an order of the court.  

A person intermeddles if they undertake actions that an executor or administrator would perform in the course of their duty to administer the estate. This includes selling estate assets, collecting or paying debts of the estate or otherwise acting as personal representative. A person however does not intermeddle if the merely arrange the funeral or if they collect or repair assets to protect or preserve them. The distinction is not always obvious, so it's recommended to seek legal advice if there is any doubt. 

Where the appointment of an executor cannot take effect, the law determining who is entitled to act as personal representative and to apply for a grant is set out in rule 20 of The Non-Contentious Probate Rules 1987. This sets out the following in order of priority after the executor:

1. any residuary beneficiary under the Will 
2. the personal representative of any residuary beneficiary under the Will
3. any other beneficiary under the Will
4. the personal representative of any other beneficiary under the Will

The court also has the power to appoint new personal representatives in place of the existing executors or administrators or to ‘pass over’ an executor in favour of another. In such cases, the court will want to be satisfied that the replacement is suitable, but there is no requirement that they must be a beneficiary or otherwise have any interest in the estate. 

For further information, please contact the wills and inheritance disputes team.