The Death of an Executor: Who carries the torch?

What happens if an executor or administrator dies before they finish the job?

This situation happens from time to time, however it’s not one that many people think of in advance, despite the potential implications. The issue should be considered by will makers, executors, administrators and even beneficiaries, as it has the potential to impact them all.

This article provides practical explanations and examples.

Let’s consider this example scenario:

  1. Jo has died leaving a Will. The Will says:

    “I appoint my sister, Mary to be my executor. If Mary dies before me or is unwilling or unable to act as executor then I appoint my brother, Ben to be my executor”.

  2. Mary survives Jo. Mary applies for Probate of Jo’s Will and starts the process of administering Jo’s estate.
  3. Mary dies halfway through completing administration of Jo’s estate.
  4. Mary herself has a Will, which appoints Mary’s husband, Steven as executor.

Who administers Jo’s estate now that Mary has died?

Where a sole executor dies before completing administration, that executor’s own executor will become the executor of the original estate and the second estate. This common law position is called the “chain of representation” and goes back over several centuries. It has been enshrined in legislation in some States of Australia, including Victoria and Queensland.

In our example scenario, it means that Steven will have the responsibility and authority to finish administration of Jo’s estate and administer Mary’s estate.

Does Steven automatically become Jo’s executor upon Mary’s death?

No, Steven will need to obtain Probate of Mary’s Will, in order to be formally appointed as Mary’s executor and to become entitled to act as executor of Jo’s estate.

Does Steven need to obtain Probate of Jo’s Will?

No, Steven will not need to obtain Probate of both Wills. He only needs to obtain Probate of Mary’s Will. Once he proves Mary’s Will he will automatically become the representative of and be entitled to administer Jo’s estate.

What if Mary’s estate doesn’t require a Grant of Probate?

There are some cases where Probate isn’t required to administer an estate – for example, if there are minimal assets within the estate.

If Steven doesn’t obtain Probate of Mary’s Will, he won’t become entitled to finalise Jo’s estate. In that instance, one of the beneficiaries of Jo’s Will could apply to the Supreme Court to obtain a grant of letters of administration with the will annexed, which would entitle them to finalise Jo’s estate. This is known as a “grant de bonis non”.

Why isn’t Ben entitled to administer Jo’s estate, given he was named as substitute executor in Jo’s Will?

It comes down to the timing of Jo and Mary’s respective deaths and the important fact that Mary had obtained Probate of Jo’s Will before she died.

If Mary didn’t survive Jo, or if Mary never obtained Probate of Jo’s estate, then Ben would be able to obtain Probate of Jo’s Will and administer Jo’s Estate.

In this case, because Mary survived Jo and obtained Probate of Jo’s Will, Steven has the authority to finalise Jo’s estate, rather than Ben, by virtue of the chain of representation.

What if Mary died without a valid Will?

When a Western Australian person dies without a valid Will their estate is dealt with in accordance with the Administration Act 1903 (WA). This legislation stipulates who is entitled to the estate and who is able to administer the estate.

As Steven was Mary’s husband, it is quite likely that he will be able to obtain Letters of Administration of Mary’s estate and become the “administrator” of Mary’s estate. When a person administers an estate but they were not actually named as executor within the will, the person is called an “administrator” rather than executor.

When an administrator is appointed, the chain of representation is broken.

Coming back to our example, if Mary died without a valid Will and Steven becomes the administrator of Mary’s estate, Steven will not automatically become entitled to finish administering Jo’s estate. Somebody will need to apply to the Supreme Court finalise Jo’s estate.

What if Jo’s Will was different and appointed Mary and Ben to be executors together?

When two people are executors and one of them dies the surviving executor is entitled to continue to act alone. If Mary and Ben both obtained Probate of Jo’s Will and Mary subsequently died, Ben would be able to complete administration of Jo’s estate on his own. Steven wouldn’t become involved.

What does this mean for me?

There are some important things to consider with respect to this issue, including:

  1. If you are contemplating acting as executor for a friend or relative we recommend that you consider whether that friend or relative will be administering estates themselves at the time of their death. Is there a chance that you will end up with more than you bargained for? Could you accidentally end up having to administer the estate of a complete stranger?
  2. When you are considering who to appoint as your own executor, bear in mind what will happen if they die part way through completing your estate. Would you be comfortable and happy with the idea that their executor will finalise your estate?

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.