As part of writing their Will a testator will choose people they trust to act as their executors after their death. These are the people who will deal with the administration of their estate and distribute it following the terms of the Will. Of course sometimes many years pass between the writing of the Will and the testator’s death and in this time things can change. The executors could pass away before the testator, or lose capacity, or when the time comes be otherwise unable or unwilling to act. So what happens if there are no executors to act when the testator dies?
Where there is no executor a person must be appointed to act as an administrator and apply for a grant of administration with the Will annexed. There is a set order of who may apply for such a grant. This is set out in Rule 20 of the Non Contentious Probate Rules 1987 and is as follows:
(a) the executor
(b) any residuary legatee or devisee holding in trust for any other person. This is any person to whom the residuary, personal or real estate is given on trust.
(c) any other residuary legatee or devisee (including one for life) or where the residue is not wholly disposed of by the will, any person entitled to share in the undisposed of residue under the intestacy rules.
(d) the personal representative of any residuary legatee or devisee (but not one for life, or one holding in trust for any other person), or of any person entitled to share in any residue not disposed of by the will.
(e) any other legatee or devisee (including one for life or one holding in trust for any other person) or any creditor of the deceased.
(f) the personal representative of any other legatee or devisee (but not one for life or one holding in trust for any other person) or of any creditor of the deceased.
An applicant for a grant of letters of administration with the Will annexed must clear off all those who have a prior right. For example if a person who falls into category c above wishes to apply they must clear off all those in category a and b. The executor in category a is cleared off automatically as they have predeceased. If are any people in category b they must first renounce or be cited to accept or refuse a grant. Once they are cleared off the person in category c may apply for the grant.
Where there are people entitled in the same degree any of them may apply for a grant without giving notice to the others.