When making a Will, your chosen Executors will have to administer your estate after you die in accordance with the terms of your Will.
The Executors will be responsible for dealing with your bank accounts, property, shares, investments, debts and liabilities before distributing your estate to your chosen beneficiaries. They will also have to ensure any legacies are paid and specific gifts distributed.
If an Executor were to lose mental capacity, then they will be unable to complete their role.
Because of this, it is always sensible to appoint more than one Executor and consider whether you wish to appoint a replacement Executor, should your original Executor(s) be unable or unwilling to act in their role.
What if my Executor loses mental capacity in my lifetime?
If your chosen Executor were to lose capacity whilst you were still alive, and you still have testamentary capacity (the capacity to make a Will), you should review your Will to appoint a different Executor. Ideally, you should always make sure that you have at least two Executors able and willing to act.
Alternatively, you could consider appointing professional Executors, such as a firm of solicitors, to deal with your estate once you have died.
What happens if my Executors don’t have mental capacity after I have died?
If an Executor has lost mental capacity after you have died, but there are further Executors named in the Will, then an application for the Grant of Probate can be applied for in the remaining names of the capable Executors.
Usually, evidence would need to be submitted to the Probate Registry by way of a medical certificate to explain that the other Executor has lost mental capacity and cannot act.
If there is only one Executor appointed in the Will and they have lost mental capacity, then it may be possible for their Attorney to act on their behalf where there is a Lasting Power of Attorney in place.
A Court of Protection Deputy may also be able to act if the person lacking capacity has not made a Lasting Power of Attorney, but usually specific authority must be sought from the Court first.
The Non-Contentious Probate Rules 1987 will determine who is entitled to make the application for the Grant of Probate where a sole executor has lost capacity.
You can apply for the Probate Registry here.
What if the Grant of Probate has been issued and they lose mental capacity?
If the Grant of Probate has been already been issued and the Executor then loses mental capacity, the Grant of Probate will need to be revoked and a further Grant of Probate will need to be applied for.
How can Timms help
If you would like more information on any topic within this blog, on making or updating a Will or assistance with Executors, please do not hesitate to contact me on 01332 364436 or via email at e.facer@timms-law.com.
