Do your Executors have to act?
Your Executors are not under any obligation to take on the role. Even if you appoint only one Executor, they will still have the option to stand down if they are unwilling or unable to fulfil their duties when the time comes. If this is the case, it will become necessary for someone else to apply to the court as an administrator.
There are any number of reasons why an appointed Executor might not wish to act:
they have simply changed their mind
they didn’t know they had been appointed in the Will
they have moved away
they have become ill or disabled
they now have responsibilities as a carer
they were appointed in a professional capacity but have retired from practice.
If they are choosing to step down, they can renounce the role. To do so they need to complete a ‘form of renunciation’, available from the Probate Registry.
In the event that your Executor chooses to renounce their position, renunciation takes effect immediately. It does not grant them the right to appoint another person in their place.
If the Executor is not able to act
There may be circumstances where an Executor is not able to act:
The named Executor died before the testator
They were the spouse or civil partner of the testator when the Will was drafted, but the marriage or partnership has since been dissolved or annulled
They do not have the mental capacity to act
Their right to act has been taken away by the court
If you appointed a sole Executor and they die before you without you appointing someone else in their place, your estate will be administered by the person first entitled under the rules of intestacy. This does not mean that your Will is invalid, or that you will be deemed to have died intestate, just that the person who will act as your personal representative may not be the person you would have chosen.
If a person no longer has mental capacity to act as Executor when you die, then the other Executors (if any) can act; if there are no other Executors, then the law sets out how someone else would be able to apply for probate.
Ensuring you get the Executors you want
You cannot guarantee that the people you nominate as Executors will be able and available to be your Executors when you die. It’s a good idea to:
appoint more than one Executor
make sure they know you want to appoint them as Executor
check every so often that they are still willing and able to act
appoint substitute Executors.
Changing an Executor
If you need to amend your appointment of Executors in your Will, you can do so by making a simple codicil which you just need to sign in the same way as you signed your Will.
Or you can make a new Will. It is good practice to consider whether your circumstances have changed whenever you are thinking of making a small change. Looking at all elements of your Will and bringing it up to date will often make more sense than using a codicil.
Removing an Executor
The removal of an Executor is a court process instigated by someone other than the Executor. It may be that a beneficiary questions the Executor’s actions or alleges that they are not performing their duties correctly.
Once an application to court has been made, a decision will be made as to whether or not to remove the Executor, and whether a substitute will be appointed to take their place. An attempt to remove an Executor is not an easy application. There must be proof of serious misbehaviour on the Executor’s part before the court will even consider removing them. Generally, it needs to be shown that the Executor is incapable of performing their duties and unsuitable for the position.
Court processes can be time-consuming and costly. It is therefore important to consider carefully who you would like to name as your Executors in the first place, and to consult with them before formalising it in your Will. Doing so may help to avoid future disputes and ensure that whoever you choose to be your Executors do in fact end up administering your estate.
Your choice of Executors when you make your Will is entirely your own but you may feel that by appointing a professional Executor you can limit some of the risks outlined above.