Probate and Will, Trust & Estate Disputes

Publish date

27 April 2023

What options are there if a person can no longer administer an estate?

If a person is appointed to administer an estate in their sole name but that person lacks mental capacity to act, it is still possible to progress the estate administration by analysing the specific circumstances, identifying the person/s next entitled to administer and preparing the papers required in order to extract the grant of representation.

It is often the case that the will includes a substitute provision, which sets out who is to administer the estate in the event that the person/s appointed to act in the first instance is unable or unwilling to take-up their appointment. If this is the case, then the substitute/s should be able to act in the administration of the estate and take out the grant of representation in their name/s, so long as they have capacity and the appropriate papers are prepared and submitted to the Probate Registry.

Can others step in to help administer the estate?

If, unusually, the will does not include a substitute provision and the person/s appointed to administer the estate are unable or unwilling to act, there is still opportunity for other persons to step-in and take on the role of administering the estate.

Statute and the Non-Contentious Probate Rules (NCPR) set out the persons who are next in line to administer. This situation is less than ideal as the NCPR sets out prescriptive rules on who can administer, depending on the provisions of the Will. The NCPR will determine the next group or ‘class’ of people who would be entitled to take up their appointment. If there is no person available or able to act in that specific group, we would look to the next prescribed class of people under the NCPR rules.

The NCPR rules can be very complicated and our probate team are on hand should you need advice or guidance on how to move forward.

Where the NCPR rules have to be relied on, it is often the case that the persons who end up administering are far removed from the persons the testator expected and trusted to administer. This situation could have been easily avoided by the testator simply updating their will.

As a result, we would always advise you to revisit your will whenever your circumstances change. As a minimum, you should review your will at least once every few years. If there are any changes you might like to consider to your will, get in touch with a member of our friendly Wills, Estate & Tax planning team.

How can a power of attorney help in estate administration?

Where an executor has already obtained a grant of probate and then finds that they are no longer able to administer the estate, this should not mean that administration comes to a grinding halt.

One solution is for an executor to give what is known as a “power of attorney” allowing someone else to act on the executor’s behalf in the administration.

The power of attorney can continue for as long as it is necessary to administer the estate (or as long as the executor needs it to continue), although the appointment must be renewed every twelve months.

Where executors want to continue making decisions on how best to administer but, for example, they are unable to sign legal documents, then we can prepare the power of attorney so that it is restricted to certain acts that the executor specifies.

It is important that the power of attorney is drafted properly to best reflect the executor’s requirements and to ensure that the attorney will be able to act when the executor is not otherwise available.

Should an executor wish to consider putting a power of attorney in peace, then a member of this firm’s Probate team would be pleased to assist.

If you have any questions about this topic, please get in touch

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