What is the position in the event of a co-executor (one of two) taking ill during the administration of an estate and being unable to continue to act by reason of ill health, specifically where documents (share sales, etc) require the signatures of both co-executors?
Mr G.O’M.
Executors play a key role in tidying up a person’s affairs after they die and organising for the distribution of their estate in accordance with the wishes set down in their will. It is an onerous role and not one to be accepted lightly.
People often name either a close, trusted family member in their will to fulfil the role but it really is worth taking the time to consider whether, much as you trust and love them, they have the skills, personality and discipline to execute your estate in a timely and organised fashion.
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It is always worth checking first with the person to ensure they are happy to carry out the duty. If not, they can and may renounce the responsibility, leaving it to the courts to appoint someone to act in the role. This is one of the reasons why many people choose to name more than one person to act as executor.
There is also the possibility that by the time you die and they are called upon to act as executors to your estate, they themselves may no longer be in a position to do so, either because they may have moved abroad or be ill themselves, or have even died.
Perhaps with this in mind, or simply because of the occasionally complex and legal nature of the role, people regularly choose to name their solicitor as an executor – acting alone or alongside a family member. And where more than one executor is appointed, significant actions in relation to the estate will require the consent of all executors.
When people think of executors, the primary function that comes to mind is the securing of a grant of probate, which is the legal process showing that all necessary legal, financial and tax affairs are in order and that the executor can act on the instructions in the will to dispose of a dead person’s remaining assets.
But, in fact, the power of an executor is even wider. Essentially, they have full control of a person’s estate from the moment they die even down to more mundane issues like organising the funeral. On the flip side, they are required to compile and present accounts on the dead person’s estate for Revenue.
Because of its wide range and depending on the complexity of the dead person’s affairs, it can take a long time for the process to run its course. Intended beneficiaries can become frustrated and it is always sensible to have clear communication with all parties, in writing.
An executor is legally protected from challenge for 12 months from the time they take up the role and they are legally protected as long as they can show they have acted in “good faith”. Challenging an executor is cumbersome and expensive – not least as the expenses of any legal action are generally taken from the estate, leaving less for the people likely to be among those challenging the executor.
But it is equally difficult for an executor to step back from the role once they have started the process.
An executor, once they agree to act, is appointed for life. If they change their mind, or find the role is beyond them, the only way they can step back is with the permission of the courts.
The same will be true in this case. If your coexecutor can no longer fulfil their duties because of ill health, application will need to be made to the probate list which is part of the High Court.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
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