Backup executors can help the Probate process run smoothly

Backup executors can help the Probate process run smoothly
Mick Grant
Mick Grant

Founder and Writer

When an individual makes a Will, the person they select to be their executor may be hail and hearty. But there are chances that the executor may fall into ill health or expire before the Will maker. It is a reality of life that anybody can die unknowingly. Even though it is an unimaginable scenario, one must be prepared for it. If the executor predeceases the Will maker, someone he/she is unknown to or might not trust as much as the primary executor oversees the estate. In that case, this also complicates the Probate process. Appointing backup executors by amending the Will can help avoid this situation.  

Who is an Executor? 

An executor is a person who is in charge of carrying out the wishes of the Will maker as per their Will and the legal duties put down on them by law. In the Will of a testator, the executor is specifically named. They are responsible for collecting the personal and real estate of the deceased and managing it according to law, presenting the inventory of the estate and all the accounts of the administration, delivering grant of Probate when required by the court. Apart from this, the executor also has to prepare a list of the assets and liabilities of the deceased and protect them from theft or destruction of any kind. It’s also his/her responsibility to pay off all taxes and debts before distributing the assets to the beneficiaries.

A Will maker can write a Will at any given point in their life. But the selected executor can pass away before them. If there is selection of more than one executor, and only one of them passes away, the remaining continue their duties as assigned. Similarly, an executor may have selected a substitute in their Will to take up the role. However, if the only named executor passes away, or all the executors pass away the Probate rules of the court decide who manages the estate thereon. 

 Who applies for Probate in case of executors’ death?

The people entitled to apply for Probate in case of the executor’s death are – a trustee of the estate, a beneficiary, a representative of any beneficiary, a creditor of the deceased or a legatee, and a personal representative of the creditor or legatee. If more than a person is entitled, then anyone can apply for the grant to Probate. But the application must clearly mention the reason for the change. If the executor dies before the Probate has been issued, then the others named in the Will are responsible for dealing with the estate. In case all executors pass away before the Probate process, then the rules of the Probate court will be applicable. In most cases, the beneficiary who receives the largest sum of the estate has the right to deal with it. At least two executors should act to avoid any such circumstances. 

Death of the executor during Probate

 If an executor of a Will dies during the application process of Grant of Probate, it can lead to complications. It’s the executor’s job to manage the deceased estate, and if he/she dies, the process is left uncompleted. In this case, someone else has to step in to take his/her place. It is advisable to appoint a replacement executor. This person can take the responsibility in case those appointed initially aren’t able to do so. This ensures that if someone dies, there is someone else who can handle the responsibilities. Legal advice is essential to ensure that the estate is correctly dealt with, and the wishes of the deceased are carried out. 

Tips to follow during the Probate process

An individual should appoint at least two or more backup executors in case the primary executor becomes incapacitated or dies. One should be aware of the well being of their primary executor and regularly review the Will. In case of the primary executor’s death, arrange to amend the Will and appoint another executor. An appropriately drafted will ensure that the secondary executor can manage the estate in the absence of the primary executor.

Circumstances like these are unpredictable, but one must ensure that they have a backup for everything. Where things like Will and estates are concerned, one must avoid making hasty decisions. Expert advice is the best way to be sure. 

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