Is it possible for one executor to act without the other?
If you’re an executor of a will and other executors have also been appointed, you may have some questions about who should act and apply for probate and how. This article explains some of the things you may need or want to know as a co-executor.
Co-executors are legally required to work together
It isn’t legally possible for one of the co-executors to act without the knowledge or approval of the others. Co-executors will need to work together to deal with the estate of the person who has died. If one of the executors wishes to act alone, they must first get the consent of the other executors.
What does it mean to act as an executor?
Executors are responsible for dealing with the estate of someone who has died. This may include closing bank accounts, paying off any debts, and selling or transferring property so they can share everything out between the beneficiaries of the will.
It might be that a co-executor doesn’t want to be involved
If a co-executor is happy to take a step back and not be actively involved in the estate there are options available to them. They could either:
Agree to have power reserved to them
Having power reserved
Having power reserved means that an executor doesn't want to actively deal with the estate and is happy not to be named on the grant of probate.
They’ve confirmed that they’re happy for their co-executor(s) to act on their own. But, they reserve the right to apply for probate at a future date, should they later decide that they’d like to be involved.
If a co-executor has agreed to have power reserved to them, they’ll receive a ‘Notice of Power Reserved’, which will be signed by the executor(s) who are planning to act in the estate. There isn’t anything further that they need to do.
This option is much more final. If an executor decides to renounce probate, they will not be able to step back in at a later date. An executor cannot renounce if they’ve already started to deal with the estate administration.
The renouncing executor will need to sign a document called a ‘Deed of Renunciation’. If probate is needed, the acting executor will need to send the original signed Deed of Renunciation to the Probate Registry, alongside the rest of the grant application paperwork.
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There are situations where a co-executor will be unable to act
Co-executor has died
If a co-executor has died, the surviving executor(s) will need to get a copy of the death certificate for their records. If probate is needed, the acting executor will need to send a copy of the death certificate to the Probate Registry, alongside the rest of the grant application.
If probate isn’t required, the surviving executor(s) may need to show the death certificate to companies holding assets for the estate, before they will agree to release any funds.
Co-executor has lost capacity
If an executor is unable to act because they lack capacity, the situation can become quite tricky. It’ll be too late for them to renounce and they won’t be able to receive a ‘Notice of Power Reserved’ from another executor, as they’ll lack the necessary capacity to understand what this is.
The co-executors will need to establish whether a Lasting or Enduring Power of Attorney is in place and, if so, they should request a copy of this. Lasting and enduring powers of attorney are legal documents that give authority for people to act on behalf of someone else.
Once they have this, they’ll be able to communicate with the registered attorney, if necessary.
If probate is needed, a medical certificate confirming that the executor has lost capacity may need to be submitted by the other acting executors to the Probate Registry, alongside the grant application. A doctor or other medical practitioner can complete this on a ‘Form PA14’, which you can find at GOV UK.
Co-executor is a child
If a co-executor is under the age of 18 years at the date of death, they won’t be able to act in the estate and won’t be permitted to apply for a grant of probate. The other executor(s) can go ahead and apply for the grant whilst they wait for the minor executor to turn 18. The other executor(s) would need to send a ‘Notice of Power Reserved’ to the minor executor.
If any of the estate is still left to be dealt with when the child turns 18, then the executors will need to apply for a new grant with all their names on it.
Co-executor cannot be located
Every effort should be made to try to track down a missing executor named in the will. This will be the responsibility of the other named executors. If none of the executors can be located, then it will be the responsibility of the people benefiting from the will (the beneficiaries).
Searches should be made through:
friends and family
or otherwise a professional genealogist company.
If probate is needed, the Court can in some cases agree that it would be better for the estate to go ahead with the application without notifying a co-executor.
For example, if it's going to be too time consuming and expensive to locate them. But, the Court will only agree to do this once every possible search has been exhausted and in very exceptional circumstances.
If probate isn’t required to deal with the assets in the estate, banks, investment companies and other asset holders may still insist that all the named executors in the will sign their closure forms. They may refuse to release funds to the estate until all the executors have signed their paperwork.
Co-executor is a professional firm which has ceased trading
If the co-executor is a law firm or lawyer and it’s believed that they’re no longer trading or practising, it’s best to check that this is correct with the SRA (Solicitors Regulation Authority). They’ll make sure that the firm hasn't merged with another firm or just changed its name.
It's a good idea to try and get the SRA to confirm this in writing if possible. If probate is needed, this written confirmation can then be sent by the other acting executor(s) to the Probate Registry alongside the rest of the grant application.
If the firm has changed names or has merged with another firm, most wills state that the successor firm will take over the right to act as executor.
When disagreements arise between co-executors
Occasionally, co-executors won’t agree on things. Disagreements between executors, although sometimes unavoidable, can cause worry, upset and uncertainty.
They can also delay the administration of an estate. When communication between co-executors severely breaks down, it can take time and money to fix the relationship.
What might lead to disagreements?
It might be that executors will have differing views on what should happen to the property of the person who has died.
Matters can get complicated when an executor or beneficiary occupies a property and expresses a wish to remain there, but the other executor(s) or beneficiaries want to sell it.
It could also be the case that executors don’t agree on the value of the property - perhaps one executor wishes to undervalue it to get a quick sale, whereas the other(s) would like to hold-off on the sale and do some development work to try and increase the property value.
Disputes can also arise when personal belongings are being valued and distributed.
If the person who died made some large gifts in their lifetime, there may be disagreements between executors later. People may disagree on whether these were true gifts or whether they were intended to be loans.
Dealing with disagreements
Executors need to be able to work with each other to find a way through things they disagree on. Regular communications between executors can help stop any differences of opinion becoming a bigger problem.
It may be that co-executors don’t want to step away from the estate administration, but they can’t see a way of communicating and working together. A useful option in these situations may be for them to appoint an attorney to act on their behalf.
The attorney could be a family member, friend or a paid professional. The executors would need to sign a general, limited power of attorney. This would authorise their attorney to act on their joint behalf to apply for probate (if needed) and deal with the estate administration.
A professionally appointed attorney would be able to offer advice, guidance and options to the executors and will remain independent throughout.
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Can one executor remove another?
It might be the case that probate has already been granted by the Probate Registry, but as the estate administration goes on, it becomes clear that one of the executors isn’t doing their job properly. They might not be acting appropriately or in the best interests of the estate.
In these situations, it may be possible for the other executor(s) to apply to the Court to have them removed.
An application can be made by the other executors to the Court under the Administration of Justice Act 1985. The reasons for making the application will need to be compelling if it’s going to be successful. The other executors will need to put together evidence and they should seek professional advice from a contentious probate expert.
Examples of situations where the Court may remove an executor include:
if they’ve been personally cashing in the assets
of the estate rather than distributing them to the beneficiaries;
if they’ve acted dishonestly;
if they’ve been convicted of a crime and are in prison;
if they’re unable to carry out their responsibilities due to a physical or mental disability;
if they’ve caused unnecessarily, significant, long delays;
if they’ve neglected to take proper care of assets, such as the property of the person who died.
The Court will need to consider whether it’s in the estate’s best interests to remove the executor and the effect this will have on the beneficiaries.
The legal costs involved in making an application to remove an executor can be significant and whether this kind of action will be appropriate and proportionate will depend on the individual facts of the case and the value of the estate.
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