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Hopefully it’s a very long time before your Will is needed. But if that’s the case, there is a chance you may have survived your appointed executor, or they have become elderly or lost capacity over the years. Or perhaps they are no longer able to carry out your wishes. This article explains what happens if the nominated executor dies before the Will-maker or can’t execute the Will and esate.
What if the executor dies before the Will-maker?
It is common for joint executors of a Will to be nominated. So, if an executor dies before the Will-maker, but they are survived by another joint executor, that person can administer the deceased person’s Will and estate by themselves.
The deceased person may have also appointed a backup executor of their Will, in case the primary executor dies before them. In that case, the backup executor can generally execute the Will and estate as usual.
What if the executor dies before the Will-maker and there is no backup executor?
If the primary executors of the Will have died and there is no backup executor appointed in the Will, the deceased person’s next of kin, family member, or another person benefiting from their estate, can apply to the Supreme Court in their state or territory to be the administrator of the estate. Usually, the Court will grant administration to the beneficiary with the largest interest in the estate. This is what is known as ‘Letters of administration with the Will annexed’.
The administrator of the estate then administers the Will and estate as if they had been appointed the executor of the Will.
However, if the Will-maker is still alive it is advisable to either amend the Will or make a new one that appoints new primary and backup executors.
What if the executor of a Will loses capacity to act?
In the event that the nominated executor survives the Will-maker, but loses the capacity to administer the estate, another person may apply to the Supreme Court in their state or territory to obtain a Grant of Administration.
When a nominated executor of the will is ‘unable to act’, the process becomes the same as if the executor had died before the Will-maker.
Tips for appointing an executor
When making your Will, consider the age and health of your primary executor. It is also wise to appoint one or two backup executors in case the primary executor dies or loses the capacity to act before you have died.
Appointing more than one primary executor of a Will can sometimes create more work or complicate the administration process. But if you decide to appoint multiple primary executors, consider their relationship and if you are confident that they can work closely together.
Wills and estate plans shouldn’t be a ‘set and forget’ approach, but reviewed every few years or whenever there is a significant change to your personal or financial circumstances. Although not legally necessary, it’s safer to update or write a new Will if your chosen executor has since died, becomes incapacitated, or is no longer able to execute your Will for some reason.
Ensuring information is current and correct makes it easier for your executor to carry out your final wishes.
How to make a Will
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