Absence of an executor

In drafting a will, one is often advised to consider every possible situation conceivable so that the “what happens now?” situation does not arise. For instance, what if one’s husband perishes in a common accident? What happens if one’s children who inherits the house do not agree on what is to be done with it? What happens if one’s child loses his mental capacity?
What happens if one’s executor rejects the appointment? Even if one appoints alternate executors, the question may still arise. What if (even) my alternate executor renounces his right to act as such?
There are several reasons why there may be no executor to administer the estate:
(a) No executor is appointed by the will;
(b) The executor(s) appointed are legally incapable of or have renounced the right to act as such;
(c) No executor survives the testator (i.e. the person making the will);
(d) All the executors die before probate is obtained or before the estate is completely administered; or
(e) The executors appointed do not appear and extract probate.
Pursuant to section 13 of the Probate and Administration Act (Cap. 251) (the “Act”), on the failure of appointment of an executor in the situations set out above, the Court may grant letters of administration to person(s) which the Court deems fittest to administer the estate (in accordance with the terms under the will).
In this regard, the Act also sets out an order of priority of right to a grant:
i. The sole beneficiary of an estate or a beneficiary who receives the residuary estate under the will.
ii. If the beneficiary described in (i) above is deceased, the legal personal representative of that (deceased) person
iii. Such person or persons, being beneficiaries under the will, as would have been entitled to a grant of letters of administration if the deceased had died without a will.
iv. A beneficiary having a beneficial interest.
v. A creditor of the deceased.
Regardless whether the priority of right described above is acceptable (or even ideal) to you, we would recommend that thought be nonetheless given to who one’s executor should be, and at least who the alternate executor should be in the event that the first appointed executor is unable to act, for whatever reason. This would remove the stress and anguish that one’s loved ones may otherwise have to be confronted with having to (possibly) appear in Court for an application for the letters of administration. Needless to say, please also obtain the appointed executor’s agreement to act before penning down his or her name so that he or she can be prepared for the duties and responsibilities well in advance!

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