Being named as an Executor in a Will comes with significant responsibility, from valuing all the assets and liabilities, applying for the Grant of Probate, and ensuring all taxes are finalised before distributing the estate. But what happens if the person appointed as Executor loses mental capacity before or during the estate administration process? In this blog, we explain the implications, legal considerations, and possible solutions to ensure the estate is administered efficiently.
Understanding mental capacity and legal responsibilities
An Executor must have the mental capacity to carry out their duties, as they are legally responsible for making decisions, managing finances, and acting in the best interests of the estate and its beneficiaries. Mental capacity refers to a person’s ability to make decisions for themselves. If there is any evidence that an Executor might have lost capacity, such as having advanced dementia and they can no longer understand or make informed decisions, they would be considered to have lost capacity under the Mental Capacity Act 2005.
What are the options if an Executor can’t act?
If the Executor loses capacity before probate is granted, they cannot apply for the Grant. In this scenario:
- If there are other Executors named in the Will, they may continue without the individual who has lost capacity; they will need to clear this individual off, so they should ensure they have evidence that they lack capacity.
- If no other Executors are named, or if any other Executor/s are unable or unwilling to act, a beneficiary may apply to the Probate Registry for a Grant of Letters of Administration with Will annexed;
If the Executor loses capacity after probate has been granted, the situation is more complex. They can no longer act, and no one can step in to take over their duties unless they are legally appointed. The Court may need to intervene, or an application to the Probate Registry may be necessary to revoke the Grant and issue a new one to an alternative representative.
How can families and professionals manage the situation?
If there are signs that an Executor may be struggling or losing capacity, it’s important to act early. Some steps include:
- Seeking a capacity assessment to confirm mental capacity;
- Consulting a probate specialist to explore options available and review the Will;
- Encouraging the individual to formally renounce their role (if they still have capacity) to allow someone else to take over;
- Engaging a professional estate administration provider, such as Kings Court Trust, who can step in and manage the estate efficiently if authorised by the Court or the beneficiaries.
Support when you need it most
Dealing with the complexities of estate administration can be overwhelming, especially if unexpected challenges arise. At Kings Court Trust, we specialise in supporting families and legal professionals through every stage of the process, including navigating situations where the appointed Executor can no longer act due to illness or incapacity.
Our expert team offers practical guidance and full estate solutions, helping you ensure the estate is administered properly and in line with the law.
Kings Court Trust is a probate and estate administration provider that offers award-winning solutions to support every family.
Whether you need a hand obtaining the Grant of Representation, completing the complicated tax and legal work, or anything in between, you’re in safe hands with our team of specialists.
If you have any questions about the estate administration process, including applying for the Grant of Representation, call our Client Services Team on 0300 303 9000 or fill in the form below.
