Will Executors

[zulus9]

I have some questions about what I think is a common structure of wills. It is for mine and my spouse's wills.

Will leaves everything to surviving spouse and appoints surviving spouse as sole executor.
On the condition that there is no surviving spouse appoints 2 other executors.

What happens if the surviving spouse is unwilling or unable to act as executor?

Can someone with Power of Attorney act on behalf of the surviving spouse?

Can the other named executors act in these circustances? If so does the surviving spouse first have to renounce being executor?

Thanks,

Zulus9

[Dod101]

I have always been advised that it is sensible to have a minimum of two executors to cover just that sort of situation. Costs nothing and the second executor need not act if all is left to a surviving spouse. Actually I can see no advantage in not doing that.

Dod

[DrBunsenHoneydew]

I have some questions about what I think is a common structure of wills. It is for mine and my spouse's wills.

Will leaves everything to surviving spouse and appoints surviving spouse as sole executor.
On the condition that there is no surviving spouse appoints 2 other executors.

What happens if the surviving spouse is unwilling or unable to act as executor?

Can someone with Power of Attorney act on behalf of the surviving spouse?

Can the other named executors act in these circustances? If so does the surviving spouse first have to renounce being executor?

Thanks,

Zulus9

If a sole executor/executrix is of sound mind they can either hand the work to a solicitor at a large cost or can appoint an attorney using Probate form PA11. They don’t need the full LPA process if the attorneyship is just for the executorship. An existing financial LPA could also be used, and if already registered and in use for lack of capacity of the surviving spouse executor could also be used in that circumstance.
I don’t think you can use an attorney if there is more than one available willing executor named in the will though.

[ten0rman]

When my father died, in 2004, my mother was the initial executrix, with my brother and I as second choice executors and my sister, who lives abroad, as third choice. Our mother adamantly refused to do the job, so my brother produced a short letter for her to sign saying that she did not want to do it. This was accepted and in fact I then did the probate with my brother taking "power reserved". No problems at all.

I remember taking our mother to their solicitor to get hold of my father's original will - no need of the letter for that, so I assume (because I can't remember) we submitted the signed letter along with the relevant probate forms to the relevant authorities, Courts & Tribunals? However we did it, it was simple and straightforward.

I don't recall having to invoke powers of attorney.

Of course, things may be different today.

Regards,

ten0rman

[Raptor]

According to Citizens advice you just need form PA1

Raptor.

[Lootman]

I have always been advised that it is sensible to have a minimum of two executors to cover just that sort of situation. Costs nothing and the second executor need not act if all is left to a surviving spouse. Actually I can see no advantage in not doing that.

The only disadvantage I can think of is that the second executor may insist on being involved as an equal executor with your first choice, and that may cause delays or conflicts.

I also think it is generally a good idea to leave a little something to that second executor or his/her family, as a motivation to do the job if needed. Otherwise being an executor carries risk but no upside if they are not gaining from the estate. And as such they might refuse to do the work if you need them to.

[JohnB]

7 years ago my mother passed on her executor duties for my father to second line executors (my brother and me) with no bother at all. She did not need to leave the house (too ill), and I recall no problems getting wills from solicitors or my brother doing probate. I think there was a simple declaration form, certainly no LPA was needed.

[zulus9]

Thanks for your responses. On re-reading my post I think I missed out a vital word.
I should have asked if the other 2 named Executors can act asExecutors if the surviving spouse is still alive (but renounces executorship).

The exact wording I have seen is "If my [spouse] is not living on that date......then in that event and (but not otherwise) I appoint...."

So it seems to me that either

(i) the spouse acts as Executor, or
(ii) the spouse appoints a representative (but would then still legally be the Executor) or
(iii) the holder of a Power-of-Attorney (if any) for the surviving spouse can act for the surviving spouse or
(iv) the spouse renounces Executorship and there are then no Executors and probate would have to be though a Grant of Representation.

It is with (iv) that I am unclear about as Grant of Representation seems to apply to situations where there is no will.

So ultimately what I am trying to understand is that if the surviving spouse is unable or unwilling to act as Executor does this fact over-ride the condition "but not otherwise".

Thanks,

Zulus9

[DrBunsenHoneydew]

If the named executor refuses to act then any other beneficiary can step in as executor.
If there are no other beneficiaries (all estate left to the refusing executor), then a next of kin can apply for a court order to step in. They might do this if they wish to get things sorted out for their bloody-minded relative, especially if they know they are going to have to sort out the estate when the refusing executor dies.