Executors play a vital role in fulfilling a testator’s wishes and distributing their estate properly. Occasionally, issues arise when decisions about whether to act, renounce or have power reserved are made too soon. In this article, we explore the legal and practical effects of such decisions.
Renunciation is a formal and irreversible decision made by a named executor to decline the role. Generally, this takes the form of completing a PA15 – Renunciation form and filing it to the Probate Registry. Crucially, executors should be advised that once they renounce, they are permanently removed from having any legal authority over the estate.
An alternative option, and one that I perceive to be a safety net for all executors and the estate, is to reserve power. This means that an executor delays their initial action, letting the other executor(s) take the leading role. This is common when executors live overseas or prefer not to be involved until necessary.
Imagine a situation where a testator appoints three executors. For whatever reason, two of them renounce probate, leaving one executor to act alone. The acting executor takes all necessary steps and ultimately receives the grant and commences work in administering the estate. Somewhere down the line and before the estate is fully managed, the sole acting executor loses mental capacity or dies. Due to the other executors renouncing probate, their status is irreversible, consequently creating an administrative gap.
The estate cannot remain in administrative limbo, and a new grant must be obtained to manage the remaining unadministered part of the estate. This is known in Latin as a grant de bonis non administrates, which means ‘concerning goods not yet administered’.
Due to all original executors being incapacitated, deceased or having renounced, the Probate Registry or court will be involved in appointing a suitable estate administrator. This process can be challenged, particularly if the estate is complex, HNW or UHNW, with assets in multiple jurisdictions and / or is an estate where family dynamics aren’t simple.
Appointing a new administrator leads to delays and further legal and third-party fees are involved in submitting a new application for a grant and dealing with unfinished tasks. Ultimately, there are expected to be duplicated efforts and extra professional costs as well as risks of mismanagement when the only executor has not maintained a proper file and records of the estate progression.
In the previous scenario, if the other two executors had instead acted with power reserved rather than renouncing, then managing the situation of a fellow executor who becomes incapacitated or dies would be much simpler. If one executor becomes incapacitated or dies, then those with power reserved could apply for a grant of probate after revoking the power reserved. They would easily step into the role as there wouldn’t be a court appointment or de bonis non administrates. Estate administration could proceed with minimal disruption.
As probate practitioners, we generally advise clients that they should discuss executor roles at the will drafting stage and explain the differences between renunciation and power reserved. At the probate stage, executors are encouraged to choose power reserved unless they are completely sure they will never want or be able to act. With this, we assess executors’ circumstances such as age, health and their location.
Testators need to plan for the unexpected, and for this purpose it is always helpful to have more than one executor.
The choice may have consequences if the sole acting executor later becomes incapable or dies. A testator and their chosen executors should adopt a flexible, forward-thinking approach to avoid unnecessary delays, costs and legal complications. Whenever possible, opting for power reserved maintains continuity, protects the estate and ensures that the testator's final wishes are carried out smoothly.
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