Bulletins | April 11, 2014

Executors and reserving power to the Grant of Probate

The period following the bereavement of a loved one is a particularly difficult time, especially for a widow or widower. This can be even more stressful if there is a mountain of “paperwork” to deal with. As many Wills appoint the surviving spouse as one of the executors it may seem impossible to avoid. Even if a firm of solicitors is instructed to deal with the preparation of any documents, supplying the necessary information and checking forms etc. can be an unwelcome additional pressure.

A person named as an executor in a Will is not under any legal obligation to undertake the role. There are many reasons why someone might not want to act as an executor. The estate may be insolvent or there may be a conflict of interest for example. Anyone who has any doubts should discuss the situation with the solicitors acting in the estate and/or their own lawyer. So long as they have not intermeddled in the estate they can renounce their right to obtain a grant of probate. This must be in writing signed by the person renouncing, and their signature must be witnessed.

When a renunciation has been completed the effect is as if he/she had never been appointed. The remaining or substitute executors can then obtain a grant of probate.

A spouse may feel that by renouncing probate they will be excluded from the process of dealing with the administration of the estate, leading to feelings of alienation and isolation. They may conclude that renunciation is too extreme, but on the other hand may not feel emotionally robust enough to deal with what can seem to be an endless stream of forms and other formalities.

There is another option. Instead of renouncing probate they can have “power reserved”. Under this procedure the remaining executors obtain the grant of probate, and it is their written authority which will be required to deal with the sale or transfer of bank accounts, investments and other assets, and it is their responsibility to pay all debts, liabilities and taxes. But by reserving power the executor who has not initially applied for the grant of probate retains the right to prove the Will at a later stage. This is achieved by making a separate application to the Probate Registry leading to a grant of double probate. Thereafter any documentation will need to be signed by all of the executors.

A non-proving executor can still be involved in the decision making process during the administration of the estate, and this may in any event be appropriate if he or she is also a beneficiary. By reserving power they can be relieved of the burden of having to deal with much of the paperwork, but still have the comfort of knowing that they can subsequently prove the Will at any time in the future.

Peter Smith is a Senior Trust and Estate Manager in the Private Client team. Please contact him for further information on the above or to discuss any trust or probate matter.