Learning Outcomes
After reading this article, you will be able to explain how executors are appointed under a will, who is eligible to act, and what happens if no executor is able or willing to act. You will also be able to distinguish executors from administrators, describe the process for renunciation and power reserved, and understand the legal effect of intermeddling. This knowledge is essential for SQE1 estate administration questions.
SQE1 Syllabus
For SQE1, you are required to understand the appointment of executors in the context of wills and estate administration. In your revision, focus on:
- the statutory requirements for appointing executors under a will
- who is eligible to act as an executor and any restrictions
- the legal effect of appointment and the consequences if no executor is named or able to act
- the distinction between executors and administrators
- the process for renunciation, power reserved, and citation when executors are unwilling or unable to act
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the minimum legal requirements for a valid appointment of an executor in a will?
- Can a person under 18 years old be appointed as an executor? If so, can they act immediately?
- What happens if all named executors in a will are unwilling or unable to act?
- What is the difference between an executor and an administrator?
Introduction
When a person dies leaving a will, the individuals responsible for carrying out the testator’s wishes and administering the estate are known as executors. The appointment of executors is a fundamental step in estate administration and is governed by strict legal rules. Understanding how executors are appointed, who is eligible, and what happens if no executor is able or willing to act is essential for SQE1.
Key Term: executor An individual appointed by a valid will to administer the estate of the deceased, ensuring the terms of the will are carried out.
Appointment of Executors in a Will
An executor is appointed by being named in a valid will. There are no special words required, but the will must make it clear who is to act. The appointment may be explicit (“I appoint my sister, Jane, to be my executor”) or implied if the will gives a person the duties of an executor.
Key Term: will A legal document, executed with the required formalities, by which a person directs the distribution of their estate after death.
The appointment is only effective if the will itself is valid. If the will fails for lack of formality or capacity, the appointment of executor also fails.
Who Can Be Appointed as Executor?
Any person can be named as an executor, including family members, friends, professionals, or trust corporations. However, certain restrictions apply:
- A minor (under 18) can be named as executor but cannot obtain a grant of probate until reaching 18.
- A person lacking mental capacity cannot act as executor.
- An undischarged bankrupt may be appointed, but their powers may be limited in practice.
Key Term: grant of probate The legal document issued by the probate registry confirming the executor’s authority to administer the estate.
Number of Executors
There is no maximum number of executors who may be appointed in a will, but only four can take a grant of probate in respect of the same property. It is common to appoint at least two executors for practical reasons, such as continuity if one is unable to act.
How is an Executor Appointed?
The appointment must be clear and certain. The will should identify the executor(s) by name or sufficient description. If the appointment is uncertain (e.g., “one of my cousins”), it will be void for uncertainty.
If the will does not expressly appoint an executor but gives someone the essential duties of an executor (such as paying debts and distributing the estate), the court may infer an appointment.
Substitute and Joint Executors
A testator may appoint substitute executors to act if the primary executor cannot or will not act. Executors may be appointed to act jointly, or the will may specify the order in which they are to act.
What if No Executor is Able or Willing to Act?
If no executor is named, or all named executors have died, renounced, or lack capacity, the court will appoint an administrator with the will annexed. The order of entitlement to apply for a grant in this situation is set out in the Non-Contentious Probate Rules.
Key Term: administrator with the will annexed A person appointed by the court to administer the estate where there is a valid will but no executor able or willing to act.
Renunciation and Power Reserved
A named executor who does not wish to act may renounce the appointment by a formal deed (before intermeddling in the estate). If there is more than one executor, an executor may have “power reserved” to them, meaning they do not act initially but may apply for a grant later if needed.
Key Term: renunciation The formal refusal by a named executor to act, made before they have intermeddled in the estate.
Key Term: power reserved A procedure allowing a named executor to defer acting, with the right to apply for a grant later if required.
Executor de son tort
If a person who is not named as executor deals with the estate as if they were an executor, they become an executor de son tort and are personally liable for their actions.
Key Term: executor de son tort A person who intermeddles with the estate without authority, and is treated as an executor for liability purposes.
Administrators: When Are They Appointed?
If there is no valid will, or the will does not appoint an executor, or all executors are unable or unwilling to act, the court will appoint an administrator. The order of priority for appointment is set out in the Non-Contentious Probate Rules and generally follows the order of entitlement under the intestacy rules.
Key Term: administrator A person appointed by the court to administer the estate where there is no executor able or willing to act.
Worked Example 1.1
A testator’s will appoints two executors: Alice (aged 30) and Ben (aged 16). Alice is willing to act, but Ben is still a minor at the testator’s death. Who can apply for a grant of probate?
Answer: Alice can apply for a grant of probate alone. Ben cannot apply until he turns 18. If Alice later cannot continue, Ben may apply for a grant when he reaches 18.
Worked Example 1.2
A will appoints “one of my cousins” as executor, but does not specify which cousin. The testator’s only living relatives are three cousins. Is this a valid appointment?
Answer: No. The appointment is void for uncertainty. The court will appoint an administrator with the will annexed, following the statutory order of priority.
Worked Example 1.3
A will appoints two executors. One renounces before acting, and the other is unwilling to act but does not renounce. What can a beneficiary do to move the administration forward?
Answer: The beneficiary may apply to the court for a citation requiring the unwilling executor to accept or refuse the grant. If the executor fails to respond, their right ceases and the beneficiary may apply for a grant as administrator with the will annexed.
Exam Warning
Executors must not intermeddle in the estate before renouncing. Any action taken in relation to the estate (such as collecting assets or paying debts) may be treated as acceptance of office, making renunciation impossible and exposing the person to personal liability.
Revision Tip
If a will does not name an executor, or the appointment is void, always check the Non-Contentious Probate Rules for the correct order of entitlement to apply for a grant.
Key Point Checklist
This article has covered the following key knowledge points:
- Executors are appointed by being named in a valid will; the appointment must be clear and certain.
- Any person can be named as executor, but minors cannot act until 18 and those lacking capacity cannot act.
- Only four executors can take a grant of probate in respect of the same property.
- If no executor is able or willing to act, the court appoints an administrator with the will annexed.
- Executors may renounce before acting or have power reserved to them.
- Intermeddling in the estate before renunciation makes a person liable as executor de son tort.
- Administrators are appointed by the court where there is no executor able or willing to act, following the statutory order of priority.
Key Terms and Concepts
- executor
- will
- grant of probate
- administrator with the will annexed
- renunciation
- power reserved
- executor de son tort
- administrator
