A common question many clients ask is; in the scenario that more than one executor is appointed, should the executors act jointly or can they act independently?
If more than one Executor is appointed to act then they must act together as they will have equal responsibility for the administration of the estate. But whilst from a decision-making perspective they must act together, they could choose to divide up the tasks that are required to be completed and, with good communication, to all intensive purposes be deemed to be acting together.
However, there may be situations when one or more of the Executors do not wish to act jointly for various reasons such as they do not have enough time or for other personal reasons. In this situation, it should be agreed that one Executor will take the lead in the administration of the estate and the remaining co-Executor(s) has two options
The first option is that they could renounce all rights to probate and Letters of Administration. This means that they are effectively retiring from the role of Executor and giving up all rights to administer the estate. If the Executor signs a formal renunciation they are declaring that they had not intermeddled with the estate and will not do so in the future. They will complete a Probate Registry form confirming the renunciation and this would then form parts of the Probate application to evidence why the named Executor in the Will is not acting.
The second option, for a co-Executor(s) who does not wish to act, is that they have ‘power reserved’ to them. This means that they are not giving up their role as an Executor entirely, but they are reserving the right to apply in the future if need be. The Executor making the application for the Grant of Probate would need to confirm that they have issued notice to the co-Executor(s) stating that they are making the application for the Grant of Probate with power reserved to them. The Grant of Probate will then be in the name of the Executor applying for the Grant but it will state that there is power reserved to another Executor(s).
Acting as an Executor is a challenging role and not everyone wishes to accept the position when the testator dies.
From a best practice point of view, having more than one Executor or appointing reserve Executors would be recommended in case the named Executor does not wish to act. In addition, a professional Executor such as a BTWC could be beneficial, particularly where the estate or Will is likely to be complex.
Just contact us for more information on the role of the Executor - 01522 500823 or email@example.com