Personal representatives - Appointment of executors

Learning Outcomes

This article outlines the appointment and authority of executors and administrators in probate, including:

• Appointment of executors under a valid will, recognition of implied appointments from executor-style duties, and the impact of will validity or revocation on those appointments
• Eligibility to act as executor and practical restrictions, including minors, incapacity, bankruptcy, professional appointments, trust corporations, and requirements for remuneration and conflict management
• Legal authority and status of executors (deriving authority from the will) compared with administrators (deriving authority only on the grant), and practical consequences for pre-grant actions
• Substitutional and joint appointments, the chain of representation where a proving executor dies, and use of limited or conditional appointments for particular assets or purposes
• Entitlement to administration with the will annexed where no executor can act, the Non-Contentious Probate Rules order of priority, and methods of clearing off prior rights
• Renunciation: timing, formalities, and consequences; the operation of power reserved, later proving, and double probate; and the role of citations in compelling progress
• Intermeddling with the estate, executor de son tort liability, and how apparently minor acts can amount to acceptance of office and create personal exposure
• The main types of limited grants—ad colligenda bona, de bonis non, and pendente lite—their purposes, scope, and exam-relevant procedural features

SQE1 Syllabus

For SQE1, you are required to understand the appointment and authority of executors and administrators in probate, with a focus on the following syllabus points:

• statutory framework governing appointment and authority (Wills Act 1837, Non-Contentious Probate Rules, Senior Courts Act 1981)
• who may be appointed as executor, and practical restrictions on acting (minors, incapacity, bankruptcy, trust corporations, professionals)
• number of executors who can take a grant and joint/several authority
• implied appointments and substitutes; chain of representation on an executor’s death
• when and how administrators are appointed with the will annexed; order of priority and clearing off
• renunciation: timing, formalities, consequences; power reserved and later proving; citations
• intermeddling and executor de son tort liability
• limited grants (ad colligenda bona, de bonis non, pendente lite) and their purpose

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.

1. What are the minimum legal requirements for a valid appointment of an executor in a will?
2. Can a person under 18 years old be appointed as an executor? If so, can they act immediately?
3. What happens if all named executors in a will are unwilling or unable to act?
4. 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. In practice, the presence of a proper attestation clause supports the presumption of due execution under Wills Act 1837. Where the will directs someone to perform essential executor duties (for example, paying funeral expenses or selling estate property), the court may treat that person as appointed even without express words, provided the intention is clear.

Executors derive authority from the will itself and may take certain steps before the grant (though institutions will usually require the grant of probate to release assets). This contrasts with administrators, whose authority to act arises only on issue of the grant.

Key Term: grant of probate
The legal document issued by the probate registry confirming the executor’s authority to administer the estate.

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; if the only executor lacks capacity, a special grant may be made to another person for the use and benefit of the incapable executor.
• An undischarged bankrupt may be appointed. While bankruptcy does not invalidate appointment, it can cause practical difficulties and may lead the court to pass over the bankrupt if appropriate.

Professionals and firms can be appointed. A will may appoint individual solicitors, “the partners” in a named firm at the date of death, a successor firm, or a trust corporation to avoid the appointment failing due to retirement or death. Where a professional is appointed, remuneration requires either a charging clause in the will or reliance on Trustee Act 2000 section 29 (for trust corporations or trustees acting in a professional capacity).

Key Term: trust corporation
A corporate body authorised to act as executor/trustee; commonly used to provide continuity and professional administration.

Key Term: charging clause
An express will provision authorising a professional executor/trustee to charge reasonable remuneration for time and skill, beyond reimbursement of expenses.

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. Executors have joint and several authority, but for certain transactions, such as transferring land or shares, all proving personal representatives must join.

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.

Appointments can also be limited or conditional. For example, a testator can appoint a person “provided they are a partner in X firm at the date of my death”, or appoint one executor to deal with business assets and another to deal with general assets. Substitutional appointments are common (“I appoint A, but if A cannot act, I appoint B”). Where substitution depends on a failure or renunciation by the primary executor, B can take a grant once A’s right is cleared off.

Key Term: chain of representation
Where a proving executor dies, their executor may become executor of the original estate by representation, ensuring continuity of administration.

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. The chain of representation allows administration to continue if a proving executor dies before completion. Conditional and limited appointments (by time, asset class, or purpose) are also effective and can be reflected by limited grants.

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 person entitled to such a grant is determined by the Non-Contentious Probate Rules and generally includes those with the greatest beneficial interest under the will, followed by other legatees or creditors if necessary. Persons of equal rank can apply without notice to one another.

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.

Key Term: clearing off
The process of removing (by proof of death, renunciation, citation, or disqualification) persons with a prior right to a grant, so a person of lesser or equal rank may take the grant.

If the only executor is a minor, the court will typically issue a grant to an appropriate adult “for the use and benefit” of the minor until they attain 18. If the sole executor lacks capacity, a similar grant may be made to an attorney or other suitable person.

Key Term: for the use and benefit
A special form of grant made to another person to act temporarily where the entitled executor is a minor or lacks capacity, protecting the estate until the executor can 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.

Renunciation must be in the prescribed form (filed at the Probate Registry) and is “all or nothing”; once renounced, the right to take a grant cannot be reclaimed. Renunciation does not affect a separate appointment as trustee: trusteeship must be disclaimed separately if the person does not wish to act in either role.

Key Term: power reserved
A procedure allowing a named executor to defer acting, preserving the right to take a grant later. It is available in probate but not in administration.

Where power is reserved to an executor (for example, a minor or someone temporarily abroad), they may later take a grant alongside the proving executor. If an executor comes of age after administration has started, a “double probate” may be issued to include them for the remainder of the administration.

Key Term: double probate
A subsequent grant issued to include another executor (often one with power reserved) so they can join in the ongoing administration.

If an executor neither renounces nor proceeds, an interested party may issue a citation compelling them to accept or refuse the grant. Failure to comply can cause their right to cease, allowing another entitled person to apply.

Key Term: citation
A court-backed notice requiring a person entitled to a grant to take probate or to accept or refuse the grant. Non-compliance may result in loss of priority.

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.

Intermeddling includes collecting debts, paying creditors, selling assets, or carrying on the deceased’s business. Merely humane or protective acts (for example, arranging the funeral, safeguarding property) do not amount to intermeddling.

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 (spouse/civil partner, issue, parents, whole-blood siblings and their issue, half-blood siblings and their issue, grandparents, uncles/aunts of the whole blood and their issue, then of the half blood). Persons of equal rank can apply without notice to each other, and up to four administrators can take the grant for the same property. Power reserved is not available in administration.

Key Term: administrator
A person appointed by the court to administer the estate where there is no executor able or willing to act.

Executors’ authority derives from the will and is confirmed by the grant. Administrators’ authority arises on issue of the grant, which vests the estate in them. Where problems arise (no personal representative available, urgent action needed, or pending litigation), the court may make limited grants tailored to the situation.

Key Term: grant ad colligenda bona
A temporary grant enabling a person to collect and preserve assets at risk before a full grant can be made.

Key Term: grant de bonis non
A grant made to complete administration where the original personal representative has died, disappeared, or become incapable before finishing administration.

Key Term: grant pendente lite
A grant issued during contentious probate proceedings to allow neutral administration pending resolution of the dispute.

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. Alternatively, if Ben were the only executor, the court would issue a grant for the use and benefit of Ben to an appropriate adult until he attains majority.

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.

Worked Example 1.4

A sole executor named in a will has lost mental capacity by the date of death. The deceased’s daughter is the residuary beneficiary. What grant is appropriate?

Answer:
A grant of letters of administration with the will annexed for the use and benefit of the incapable executor may be made to a suitable person, often the attorney under an effective LPA/EPA or, failing that, an appropriate beneficiary such as the residuary beneficiary. The daughter then administers pending any recovery, preserving the estate.

Worked Example 1.5

A proves executor dies mid‑administration, having appointed his own executors. The original estate is not yet complete. Who takes over?

Answer:
The chain of representation applies. The personal representatives of the deceased executor become the executors of the original estate by representation and continue the administration until completion.

Worked Example 1.6

There is a valid will but no executor is named. The residue is left to two adult siblings in equal shares. One sibling refuses to act. Who can take the grant?

Answer:
This is a case for letters of administration with the will annexed. Either sibling is entitled to apply, and a grant may be made to one without notice to the other. If one refuses to act, the other can proceed, provided persons with a prior right have been cleared off.

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 as executor de son tort.

Equally, if an executor neither proceeds nor renounces, a citation can be used to compel action, and failure to comply can result in loss of priority.

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. Where an entitled person is unwilling or unavailable, consider how to “clear off” their right (by renunciation or citation) and whether a limited grant (for example, ad colligenda bona) is needed to protect assets in the interim.

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, and may be implied from executor duties.
• Any person can be named as executor; minors cannot take a grant until 18; those lacking capacity cannot act; bankrupts may face practical difficulties.
• Professional executors and trust corporations can be appointed; remuneration requires a charging clause or statutory authority.
• Only four executors can take a grant of probate in respect of the same property; executors act jointly and severally, but all must join to transfer land and shares.
• Substitute and joint executors are common; the chain of representation ensures continuity if a proving executor dies mid‑administration.
• If no executor is able or willing to act, the court appoints an administrator with the will annexed; apply the NCPR order and clear off prior rights.
• Renunciation must occur before intermeddling; it is all‑or‑nothing and irrevocable once filed; power reserved preserves the right to prove later.
• Citations can compel an entitled person to accept or refuse the grant; non‑compliance can result in loss of priority.
• Intermeddling 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; their authority arises on the grant, which vests the estate.
• Limited grants exist: ad colligenda bona (urgent preservation), de bonis non (to complete administration), and pendente lite (during litigation).
• Special grants “for the use and benefit” are available where the only executor is a minor or lacks capacity.

Key Terms and Concepts

• executor
• will
• grant of probate
• administrator with the will annexed
• renunciation
• power reserved
• executor de son tort
• administrator
• trust corporation
• charging clause
• chain of representation
• citation
• clearing off
• for the use and benefit
• grant ad colligenda bona
• grant de bonis non
• grant pendente lite
• double probate