Who gets the right of representation in a deceased estate when the executor dies? - Conditsis Lawyers

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Who gets the right of representation in a deceased estate when the executor dies?

Sometimes after a grant of probate has issued to the executor of a deceased estate but before the assets of the estate have been administered, the executor(s) appointed by the will-maker passes away themselves.

In those circumstances, there is no person appointed with the authority to deal with the deceased’s assets or with title to the deceased’s assets.

What happens then?

It is the executor of the last surviving executor of the first estate who is automatically the executor of the first estate “by right of representation” as soon as he or she obtains a grant of probate of the Will of the last surviving executor. The chain of representation is broken if that deceased executor leaves no Will or leaves a Will but the Will fails to appoint an executor or if probate of the Will is not obtained. In any of these circumstances, then a further grant will be required to complete the administration of the first estate. The applicant with the best standing to do this is usually the beneficiary under the Will of the first estate that is entitled to the greatest share of the estate or in the alternative, all the beneficiaries of the first estate.  

On a related note, sometimes an executor doesn’t pass away but is too mentally incapacitated to discharge their duties as an executor. By the time the executor is required to discharge their duties, they may be frail or elderly. If there is no substitute executor appointed by the Will, then an application will need to be made to the Court for an administrator to be appointed with the will “annexed” to the grant.

A take-away message from this is that you should consider appointing a substitute executor in the event the first “instituted” executor either passes away or is unable (or unwilling) to act and secondly, you should review your Will regularly and in light of your executor’s circumstances.

Contact Conditsis Lawyers today for a review of your Will.

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