It is an unthinkable scenario but it is important to understand and be prepared for what happens if the Executor of a Will dies or is incapacitated.

What if the Executor Dies Before the Will Maker?

At the time a Will Maker makes their Will, the person they choose to be their Executor may be in good health. By the time the Will Maker passes away, the Executor may have fallen into poor health and passed away. Furthermore, the sad reality in life is that anyone can die unexpectedly.

'Backup' Executors can be appointed in the Will in case the Executor dies. If the primary Executor of the Will dies before the Will Maker, the backup Executor(s) will usually serve as the Executor once the Will Maker dies and the Estate will be administered as usual. If the Will Maker has not appointed a backup Executor and the primary Executor passes away, it is advisable for the Will Maker to amend their Will to appoint new Executors and backup Executors.

If all of the Executors of the Will have died, and there are no backup Executors appointed in the Will, another person can apply to the Supreme Court of Victoria to be the Administrator of the Estate. The Court will usually grant administration to the Beneficiary with the largest interest in the Estate. This Administrator then carries out the Will as if they were appointed Executor. This is called "Letters of administration with the Will annexed".

If the Executor dies before the Will Maker, the Estate could end up being administered by someone unknown to the Will Maker or by someone the Will Maker might not trust as much as the original preferred Executor. Amending the Will to appoint backup Executors can avoid this circumstance.

What if the Executor Dies Soon After the Will Maker?

The Executor may die after they have obtained a Grant of Probate from the Court as evidence of their authority to administer the Estate. If an Executor obtains Probate and dies, and there are no other Executors with a Grant of Probate, then the deceased Executor's own Executor becomes the Executor of the Will Maker's Estate with all of their rights, duties and responsibilities. The chain is broken if the deceased Executor left no Will, did not appoint an Executor or no Grant of Probate was granted in respect of their Will.

What if the Executor is Incapacitated?

The Executor may lack capacity at the time the Will Maker passes away or lose capacity in the course of administering the Estate. For instance, by the time the Will comes into effect, the Executor may have become very elderly and unable to carry out the wishes of the Will Maker. The Will Maker may have appointed the Executor decades ago when life expectancy was lower, but now finds that they have lived longer than they thought they would. While this might be cause for celebration, it can cause difficulties if the Executor has lost capacity by the time the Will Maker passes away.

In these circumstances, another person may apply to the Court to obtain a Grant of Administration. If the Executor has already obtained a Grant of Probate and afterwards is unable to act, application will need to be made to the Court for the Executor to be discharged of their duties so that an Administrator can be appointed.

A Will can be drafted to ensure a specified backup Executor takes over administration of the Estate when the primary Executor is incapacitated before Probate has been granted. This allows the backup Executor to obtain a Grant of Probate and administer the Estate where the primary Executor is 'unable to act'.

Any Tips?

Appoint at least one or two backup Executors in your Will in case the primary Executor dies or becomes incapacitated.
Review your Will regularly and be aware of the health of your primary Executor. If your primary Executor dies, arrange to amend your Will so that another person is appointed as Executor.
Ensure your Will is drafted so that the backup Executor(s) can administer the Estate if the primary Executor is 'unable to act'.

For further guidance, please feel free to contact our Wills and Estates team on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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It is an unthinkable scenario but it is important to understand and be prepared for what happens if the Executor of a Will dies or is incapacitated.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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What happens if the Executor of a Will dies or is incapacitated?

It is an unthinkable scenario but it is important to understand and be prepared for what happens if the Executor of a Will dies or is incapacitated.

What if the Executor Dies Before the Will Maker?

What if the Executor Dies Soon After the Will Maker?

What if the Executor is Incapacitated?