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 e xecutors
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.
(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.
(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.
The Society of Will Writers
19