Posted on: 5 January 2023
Most people understand the benefits associated with making a will. It will help take care of their estate upon their passing and ensure that it's distributed in accordance with their basic wishes. Making a will requires a degree of planning and the appointment of an executor. This individual will be responsible for handling the estate upon the death of the will-maker (testator), which is quite an important job as part of the overall process. Yet what would happen if the executor is not able to perform their duties due to incapacity? Does their incapacity present added complications, and what happens next?
Why Complications Can Arise
When a testator appoints an executor, it's not unusual for them to choose a close friend. This individual could be of similar age and may themselves be reaching the latter stages of their life. Unfortunately, it's not unusual for older people to suffer from dementia or Alzheimer's disease. Should the executor be unfortunate to be afflicted, they would not be able to perform their duties.
Search for a Plan B Provision
In an ideal world, the testator would have added a "Plan B." They would have chosen a reserve executor who would step into that position should the primary executor be unable to perform their duties. The testator should have included this information within the will itself, and in this situation, the backup executor can simply take over the reins.
How to Appoint a Stand-in Executor
However, the testator may not have made this provision, and in this case, it will be up to one of the beneficiaries named within the will to take action.
The primary beneficiaries should agree on a course of action and appoint one of their number to liaise with the court. They'll need to apply for a grant of letters of administration and provide documentary evidence (completed by a professional) that shows why the named executor is not capable. The court should then agree to the change and the applicant will be appointed to act and distribute the testator's estate.
What to Do When Complications Arise
Sometimes, the beneficiaries named in the will may disagree when it comes to the stand-in executor. They may think that certain individuals have too much of a vested interest in the outcome or may have their own reasons for such disagreement. In this situation, everything can become quite complex, and should you find yourself in this position, it's best to bring in an experienced lawyer. They'll advise the best course of action and help to bring the matter in front of the appropriate court.
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