There are several factors a person should consider when preparing their Will but one which in our experience many do not think of is – what happens if my Executor dies before completing the administration of my estate?
Let’s consider a scenario:
- Tom signs a Will which says “I appoint my son, Benjamin as my Executor. If Benjamin is unwilling or unable to act (or continue to act), I appoint my other son, Lucas as my substitute Executor”.
- Tom dies. Benjamin applies to the Supreme Court of New South Wales for Probate of Tom’s Will.
- The Court makes a Grant of Probate for Tom’s estate in favour of Benjamin. Benjamin starts administration of Tom’s estate but dies before completing administration.
It seems reasonable to think that Tom’s other son and substitute Executor, Lucas would step in and complete administration of his estate but this is not the case. If Benjamin leaves a Will, it is actually his Executor (his friend, Sam) who has a duty to continue the administration in Tom’s estate because of a principle called “the chain of representation”. It is easiest to think of it as a “chain of executors” in which Benjamin’s Executor, Sam has a duty to administer Benjamin and Tom’s estate and if Sam too dies before completing administration of both estates, his Executor (George) is responsible for all of Sam, Benjamin and Tom’s estates. The chain can continue indefinitely unless broken in the situation where a person dies without a Will.
What does this mean for you?
It is always a good idea to speak to the person you wish to appoint as Executor to let them know that you are considering them for the role. This gives you the chance to obtain their feedback on whether they have the time and skill to apply to the role. It also gives you an opportunity to raise the principle of “chain of representations” with your proposed Executor to see if they have or will appoint an Executor. You should then consider whether you are comfortable with the idea that their Executor may need to finalise your estate. It is possible that you could have a complete stranger finalising your estate so it is important that you consider the principle of “chain of representations” in your estate planning.