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What if the Executor is Dead or Missing?

An executor is a person nominated in a will to administer the deceased estate. The executor may be a friend or family member of the deceased, or a professional such as the deceased’s solicitor or accountant.  A will may name a single person as executor or it may name several alternative executors. The executor’s role is to administer the estate in the best interests of the beneficiaries. However, in some cases, the executor may be unable or unwilling to act, or it may be impossible to locate the executor. This may be because the executor is in poor health, has passed away or cannot be located.  This article deals with cases where the executor is dead or missing.

Duties of an executor

An executor is responsible for collecting the deceased’s assets, paying any outstanding debts and distributing the remainder of the estate according to the provisions of the will. They are also responsible for organising the deceased’s burial or cremation and their funeral.

An executor must:

  • Communicate clearly and on time with the beneficiaries;
  • Act in the best interests of the beneficiaries;
  • Keep a careful account of the estate’s assets and debts;
  • Finalise the estate within a reasonable time (generally a year from the deceased’s death)

The executor must apply for a grant of probate if probate is required.

Multiple executors

If the deceased has appointed more than one person to act as executor and one of the executors is dead or missing, another person named as an executor may apply for probate.

If all of the named executors have passed away or cannot be located at the will-maker’s death, another person can apply to the Supreme Court to be appointed to administer the estate. This application is known as Letters of Administration With the Will Annexed. The person who makes this application is usually a beneficiary.

Letters of administration with the will annexed

A grant of Letters of Administration is a document issued by the court that permits a person to administer a deceased estate. A grant of Letters of Administration With the Will Annexed is issued when a person dies testate but the executor is not available to administer the estate.

If an application for Letters of Administration With the Will Annexed is uncontested, it will be dealt with ‘on the papers’, meaning there will be no court appearance. The person who makes the application – usually the main beneficiary – will then be appointed to administer the estate.

Once a grant has been made, the administrator can take the document to persons who have the assets of the estate and to debtors of the estate and have them transfer money to the administrator to distribute.

Who can make the application when the executor is dead or missing?

Applications for Letters of Administration With the Will Annexed are commonly made by a beneficiary of the will. An application may also be made by another person who has standing to apply. This may be the solicitor of a beneficiary if the beneficiary lives outside the jurisdiction. It may also be the guardian of a minor beneficiary or the guardian of a beneficiary who is under adult guardianship.

What if the executor dies after probate is granted?

If the executor passes away after a grant of probate has been made, it will pass to the executor of the deceased executor’s estate to take on the role of executor. If the executor passes away without a valid will or no executor is available to act, another person with an interest in the estate will need to make an application for a grant of Letters of Administration with the Will Annexed and be appointed to administer the estate.

Seek legal advice if an executor is dead or missing

If you are involved in a matter where the only named executor has passed away or cannot be located, it is advisable to seek legal advice as soon as possible. A contested estates lawyer will be able to advise you about all the implications of an estate having an executor who has passed away or cannot be located and put you in a position to achieve the outcome you desire.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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