Death of the sole surviving executor or administrator

Where there is a Will – Chain of Representation

It is quite common for individuals to appoint one Executor in their Will or for one Executor to apply for a Grant of Probate alone. Whilst it is intended for the appointed Executor to see through the administration of the estate, there are times in which the appointed Executor passes away, before the estate administration has been finalised.

If the Executor has made a Will, then their appointed Executor(s) (the latter Executor(s)) can also become the Executor(s) of the initial estate. This is known as the chain of representation (as stated in section 7 of the Administration of Estates Act 1925). The first Grant of Probate, obtained by the deceased Executor, can be used by the latter Executor(s), without the need for a further application for a Grant of Probate in the initial estate.

Example:

Jane dies appointing her friend Shelly as her Executor. Shelly applies to the Probate Registry for a Grant of Probate and begins to administer Jane’s estate. Shelly subsequently dies leaving part of Jane’s estate unadministered. Luckily, Shelly has made a Will appointing Executors, Luke and Brian, who are happy to apply for a Grant of Probate in Shelly’s estate. In this situation, a chain of representation has been established. Brian and Luke can finalise the estates of both Jane and Shelly, without the need for a further Grant of Probate in Jane’s estate.

Where there is a Will – No Chain of Representation

It may be the case that the latter Executor(s) are not available or unwilling to apply for a Grant of Probate in the deceased Executor’s estate. Therefore, no chain of representation can be established.

In this situation, a further Grant of Representation will be required, known as a Grant De Bonis Non Administratis (translated as ‘of the goods unadministered’) with Will Annexed, limited to finalising the unadministered parts of the original estate.

In terms of who can apply for this Grant, it is most common for a Residuary Beneficiary of the original estate to apply for the Grant De Bonis Non Administratis with Will Annexed. If this is not possible, there are others who can apply, governed by Rule 20 of the Non-Contentious Probate Rules 1987.

Example:

Taking the example above, unfortunately, Luke has passed away prior to Shelly, and Brian does not want to act as an Executor in either estate. Therefore, the chain of representation has been broken. In Jane’s Will, she left her residuary estate to her cousin, Joan. Joan, as a residuary Beneficiary, can apply to the Probate Registry for a Grant De Bonis Non Administratis with Will Annexed in Jane’s estate, to finalise the administration.

Where there is no Will

More than 50% of adults in England admit to not having made a Will. Therefore, it is more than likely that an Administrator must apply to administer a deceased person’s estate.

In the event of that Administrator subsequently passing away, without the estate administration being finalised, a Grant De Bonis Non Administratis is again required.

It does not matter if the Administrator has made a Will themselves, the chain of representation is broken where the original estate was intestate.

The persons who have prior to apply for the Grant De Bonis Non Administratis are governed by Rule 22 of the Non-Contentious Probate Rules 1987.  This order is:

1. spouse or civil partner
2. children
3. parent(s)
4. siblings, or if they have died, their children
5. half-siblings, or if they have died, their children
6. grandparent(s)
7. uncle(s)or aunt(s) or if they have died, their children
8. half-uncle(s) or half-aunt(s), or if they have died, their children

Example

Steven dies without having made a Will. Steven’s brother, Tom, is appointed by the Probate Registry as the Administrator of Steven’s estate. Tom subsequently passes away, before Steven’s estate administration has been finalised. Irrespective of whether Tom has made a Will, the chain of representation has been broken as Steven did not have a Will. Steven and Tom’s younger brother, Freddie, is now the person with priority to take out a Grant De Bonis Non Administratis, in order to finalise Steven’s unadministered estate.

On 16 October 2024, Anthony Gold will be hosting a seminar  on the subject of ‘Navigating unusual and complex estate grants’ during which types of grants will be discussed in more detail. For further information or to sign up click on the banner below: