What Happens If an Executor Loses Capacity?
Being named as an Executor in a Will is an important responsibility. Executors are tasked with managing the estate of someone who has passed away — this includes valuing assets and liabilities, applying for the Grant of Probate, ensuring all taxes are settled, and distributing the estate according to the terms of the Will.
But what happens if the person appointed as Executor loses mental capacity during this process?
What Does “Losing Capacity” Mean?
If there is evidence that an Executor can no longer understand or make informed decisions, they are considered to have lost capacity under the Mental Capacity Act 2005. This could happen due to illness, injury, or a condition that affects their ability to manage the responsibilities required of them.
Losing Capacity Before Probate Is Granted
If the Executor loses capacity before probate is granted, they are unable to apply for the Grant. In this situation, any other Executors named in the Will would usually take over.
However, if no other Executor is named, the rules of intestacy apply — meaning that the next of kin would need to apply for a Letter of Administration to manage the estate instead.
Losing Capacity After Probate Has Been Granted
If the Executor loses capacity after probate has been granted, they can no longer continue to act. Unfortunately, no one can automatically step in to replace them. In this case, the Court may need to intervene, or an application may be made to revoke the existing Grant of Probate and issue a new one to another suitable representative.
Preventing Delays in Estate Administration
The loss of capacity by an Executor can cause significant delays in the administration of an estate. To prevent this, it’s a good idea to appoint multiple Executors or include replacement Executors in your Will. This ensures that if one person cannot act for any reason, someone else can seamlessly take over.
If you’re drafting a Will or dealing with probate and want to avoid potential complications, professional advice can help you put the right safeguards in place.
Get in touch with us today to discuss your options and ensure your estate administration runs smoothly — even if unexpected circumstances arise.
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