Do all the executors named in a will have to apply for probate?
Who can be named as an executor?
A testator (the writer of the will) may choose whomever they want as the executor of their Will, in most cases the executor will be a family member, close friend, solicitor or bank. It is recommended to choose family and friends over professional executors, read more about why here. The testators chosen executor will be named in their will and upon the testators death will have the legal authority to apply for a grant of probate.
It is common for 2 executors to be named in a Will, however there is actually no limit on the amount of executors that you can have. Although you can have as many executors as you like, a grant of probate can only be issued in 4 people’s names. It would be best to avoid appointing too many as this more often or not leads to disagreements and disputes that will slow down the estate administration.
If you want to avoid disputes between executors it is also possible to appoint just 1 person as an executor, although in this circumstance it would be recommended to select a backup executor if your first chosen person is unwilling or unable to act for whatever reason.
It is the executor’s responsibility to undertake the estate administration, this includes the application for probate if it is required. If there is more than one executor they must apply for a grant together, the probate office will not accept multiple applications for the same estate from multiple executors.
It may not be practical for all of the named executors to apply for probate together, this could be due to location, busy schedules or other complications. Under these circumstances you have a couple options, an executor can either reserve their power or renounce entirely.
If a person named as an executor of a Will does not wish to act or is unable to act they can choose to renounce their position. This means that they would be resigning their right to be involved in the administration of the estate, allowing someone else to take on the authority in their place. If the executor who wishes to renounce is also a beneficiary, their choice to resign their executorship will not affect their right to inherit.
For an executor to formally renounce their position and allow another person to proceed in obtaining a grant of probate, they would need to sign a Deed of renunciation confirming their choice to not participate in the administration of the estate. The signing of this document must be witnessed by an impartial third party (this means it cannot be a fellow executor, a beneficiary of the estate or family member) and lodged with the probate registry.
If there is more than one executor, the remaining executors that are willing to act will undertake the administration and will be able to apply for a grant without the renounced executor by providing the court with the Deed of renunciation.
If there is only one named Executor they may still choose to renounce but they cannot confer their right to apply for probate to someone else, this means they can’t choose who will replace them. In the circumstance that a sole executor renounces, the administrator position will defer to the deceased’s next of kin, if there is one that is willing to act.
In order for an executor to renounce they must not have “intermeddled” in the deceased’s estate. If an executor has already handled the deceased person’s assets or taken other actions that are the responsibility of an executor they will not be able to renounce. Handling the deceased’s assets could be in the form of collecting money from a bank account, paying of a debt or distributing an asset to a beneficiary.
If a person has started to take actions to administer the estate and at a later point found that they do not feel capable or are unable to continue, although they may not be able to renounce, they can still engage the assistance of a professional who will undertake the work on their behalf whilst they remain as the executor.
When an executor is not fully able or willing to participate in the full administration but does not want to lose all authority in the proceedings they can take power reserved. You cannot take power reserved if you are the sole executor of the estate, there must be another executor willing and able to act.
Power reserved allows the acting executor/executors to take the necessary actions in the estate administration whilst the executor with power reserved retains the right to participate in the administration at a later date if they so choose.
The executor reserving their power will be required to sign a “notice of power reserved” which will be provided to the court in order for a grant to be issued to the acting executor/executors.
Power reserved can be particularly useful when one or more executors do not live in the same country as the deceased and their assets but another executor/ executors do. Taking power reserved would allow the executors in England and wales to apply for a grant of probate without having to get a signature on certain documents from the executor living abroad, therefore reducing the time and complication of sending documents back and forth between countries.