Every Will should have an executor. An executor is the person who will be legally responsible for making sure that the deceased person’s directives, contained in their Last Will and Testament, are properly carried out. This is an important job that should not be taken lightly either by the person naming the executor or the person accepting the position as executor.
As a person drafting a Will, selecting an executor should be of primary concern. You will want to choose someone you can trust to follow your instructions. It should also be someone who will work well with your solicitor and be available for all court requirements. That being said, it is also a good idea to name a secondary executor in the event that your first choice is not available or declines their duties subsequent to your passing.
At any point in time, should your chosen executor indicate to you that they prefer not to continue to be your executor, you should amend your will immediately and name another first choice executor and a new secondary executor. You should take these same steps in the event your primary executor passes away.
But what if you do not take these steps and your chosen executor is no longer living at the time of your death?
This is a question that can become quite complicated. However, here are the most likely scenarios.
- The executor named in your executor’s Will is the first person that will be requested to take over the executor duties of your Will. Hence, there can be some complications with this automatic change.
- Your executor might not have Will and/or a named executor
- You may not know or like the executor named in to be the executor of your executor’s Will
How do I prevent one of these two scenarios from affecting the choice of executor for my Will?
- If your executor predeceases you, immediately amend your Will to name a new executor
- Inquire of your executor who the executor of their Will is. If you are comfortable with this person, you can choose not to change your executor. But keep in mind that if the executor of your Will changes the executor of their Will, this will affect who the executor of your Will will be, in the event that your chosen executor predeceases you
- Be sure that you always have a secondary executor named who has not predeceased you
What happens if my executor does not have a Will and predeceases me and I do not name a new executor?
- A beneficiary can make an application to become the executor of your Will
- Another person who has proper standing could also apply to be the executor of your Will. This means that a person who had a significant relationship with you could be named the executor of your Will, even if they are not a beneficiary of your Will
- This process is called making Applications for Letters of Administration with the Will Annexed
- A solicitor can assist an eligible candidate with making this application to the court
While there are avenues available if your executor predeceases you, the steps available for you to take while you are still living, are far more beneficial to you than allowing the alternatives to take over. Therefore, we strongly recommend that if your named executor predeceases you, you reach out to your solicitor and change your primary executor to someone who is still living. In the midst of this process, also be sure to elect a secondary executor so that you are sufficiently protected and your wishes can be carried out by someone you trust.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.