When a loved one dies, determining who has the authority to manage their estate can be a complex process, and whether or not a valid will exists plays a major role in this. In this blog, we’ll explore how the presence or absence of a will affects estate administration, the roles of executors and administrators and what to do if you find yourself responsible for dealing with an estate.
Executor roles and estate prioritisation
If the deceased had a will, there should be a named executor who will have the authority to deal with the estate. Executors receive their authority from the will, which grants them more power during the initial stages of administration than family members would have if there isn’t a will.
In some circumstances, the named executor may not be able to act. This can occur for many reasons, such as unwillingness to take on the responsibility, mental capacity or their own death. If the executor is unable to act, the substitute executor (if there is one named) will take on the role. If no substitute executors are appointed or they are unable to act, the estate may be managed by entitled beneficiaries.
The priority for who can administer the estate is based on their level of entitlement. For example, residuary beneficiaries take precedence over specific gift beneficiaries or creditors. If a beneficiary applies to administer the estate, they become an administrator with authority from the Letters of Administration with the will annexed, rather than from the will itself. The courts can exclude individuals who are insolvent or of bad character. Whoever takes on this responsibility still has to distribute the estate to the beneficiaries named in the will.
An ex-spouse or ex-civil partner named as executor, if divorced from the deceased, cannot act or benefit from the estate. It is crucial to keep a will updated to ensure executors and beneficiaries are still able to act and to avoid partial intestacy due to improperly disposed assets.
Intestacy administration
When a person dies without a valid will, the intestacy rules determine how their estate is distributed. Usually only blood relatives (or legally adopted individuals) are considered eligible to inherit.
If applying for a Grant of Letters of Administration, the applicant becomes the administrator, with authority only after the grant is obtained. In the case of spouses and civil partners, they have priority, and even informally separated spouses or civil partners can still administer the estate until a divorce is finalised.
If there is no surviving spouse, children are next in line, followed by parents, siblings and further relatives, with the chain of entitlement continuing down to distant relatives. Estate administration under intestacy can be complex, and the administrator must ensure beneficiaries receive their proper share.
Can executors and administrators delegate their role?
You can delegate your role through a Lasting or Enduring Power of Attorney registered with the Office of the Public Guardian, or by appointing an attorney for probate using specific Probate Registry forms. If the person entitled to act doesn’t have mental capacity to make financial decisions, Court of Protection approval is required to approve someone to act in the administration on their behalf.
An attorney’s role under a Lasting or Enduring Power of Attorney ends upon death. At that point, the executor or entitled person under intestacy rules then takes over.
Glaisyers ETL can assist in navigating the complexities found in managing authority on estates, and our experts are ready to assist you. Get in touch with the Private Client team today for more information or guidance.
