Administration - PR Unable or Unwilling to Act

Question 1

What is the difference between an executor and an administrator?

Answer 1

• Executor: Appointed by a will
• Administrator: Appointed under the Non-Contentious Probate Rules

Question 2

When is an executor unable to act?

Answer 2

• Predeceased or died before taking out the grant
• Is a minor
• Lacks mental capacity
• Is a former spouse or civil partner of the testator post-divorce/dissolution

Question 3

What are the three main options for an unwilling executor?

Answer 3

• Renounce
• Reserve power
• Appoint an attorney

Question 4

What must an executor do to renounce?

Answer 4

• Sign a form of renunciation
• Submit it to the probate registry
  Note: Renunciation is final unless the court permits withdrawal

Question 5

When is renunciation not permitted?

Answer 5

If the executor has intermeddled (e.g. sold assets, paid debts)

Question 6

What does not count as intermeddling?

Answer 6

Acts of common humanity like arranging the funeral or securing property

Question 7

What is “power reserved”?

Answer 7

Allows an executor to delay their involvement but preserve the right to apply later for a grant of double probate

Question 8

What must be done when reserving power?

Answer 8

• Written notice must be given to the reserving executor
• The reservation is noted on the grant

Question 9

Can an executor appoint someone else to act for them?

Answer 9

Yes—under a power of attorney:
Before grant: The attorney applies for letters of administration (with will)
After grant: The attorney acts under s.25 Trustee Act 1925 (up to 12 months)

Question 10

What if no executor is willing or able to act?

Answer 10

A grant of letters of administration (with will) is required and administrators are appointed under NCPR 20

Question 11

When is a person unable to act as administrator?

Answer 11

• Predeceased testator or died before grant
• Is a minor or lacks capacity
• (Under NCPR 22 only) Lacks beneficial entitlement to the estate

Question 12

What options does an unwilling administrator have?

Answer 12

• Renounce (even if they have intermeddled)
• Appoint an attorney

Question 13

Can an administrator reserve power?

Answer 13

No. Administrators cannot reserve power like executors can.

Question 14

When can a potential administrator renounce?

Answer 14

Any time before the grant is issued. Unlike executors, they can renounce even if they have intermeddled.

Question 15

What happens if someone renounces as executor—are they also renouncing as administrator?

Answer 15

No—they must renounce both rights separately if both could apply.

Question 16

Can administrators appoint attorneys like executors can?

Answer 16

Yes. Before or after the grant, following the same principles and requirements as for executors.