Executors and Reserving Power to a Grant of Probate

Losing a loved one is a very difficult time especially for a surviving spouse or civil partner. It can be very stressful if there is a large amount of paperwork to be dealt with. Many wills appoint the surviving spouse or civil partner to act as executor and it may seem impossible to avoid taking on the role. Even if you ask a firm of solicitors to deal with the preparation of any documents to apply for a grant of probate supplying the necessary information and checking the information can cause a great deal of stress.
A person named as an executor in a will is not under any legal obligation to take on the role. Do not feel that you have to take on the role if you do not wish to do so. There may be many reasons why you would not wish to act as an executor. The estate may be insolvent or there may be a conflict of interest for example. Anyone who has any doubts at all should discuss the situation with a solicitor. You should do this at an early stage as you may create difficulties for yourself if you start to carry out the administration of the estate and then wish to withdraw.
An executor may either renounce probate or he may have power reserved to himself.
If an executor renounces probate then it is as though he or she has never been appointed in a will and the remaining executors may apply for probate without involving him or her.
A surviving spouse or civil partner may think that renouncing probate is a step too far as they will be excluded from the process of dealing with the administration of the estate. They can if they wish ask for power to be reserved to them. Under this procedure the remaining executors obtain the grant of probate and it is their written authority which will be required to deal with the transfer of any bank accounts and investments and to pay any debts and liabilities. By reserving power the executor who has not initially applied for the grant of probate retains the right to prove the will at a later stage if he or she wishes. This would be achieved by making a separate application to the Probate Registry leading to a grant of double probate. Thereafter any documentation would need to be signed by all of the executors.
An executor who has not taken out a grant can still be involved in the decision making process during the administration of the estate if power is reserved to them. By reserving power an executor is relieved of the burden of having to deal with much of the paperwork but has the comfort of knowing that they are involved ant that they can prove the will at some stage in the future if they wish.
If you have been appointed to act as an executor or if you have any concerns about wills or the administration of estates then please do contact the private client team at Dixon Stewart for advices.

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