What if The Executor Is Dead or Missing?

An executor is a person nominated under a person’s will to administer their deceased estate. It may be a friend or family member of the deceased, or a professional like the solicitor or accountant of the deceased. A will may nominate a single person as the executor or it may name several alternative executors. The role of an executor is to administer the estate in the beneficiaries’ best interests. However sometimes the executor may be unable or unwilling to act in the role, or it may not be possible to locate them. This may be because the executor has poor health, has passed away, is in prison or cannot be found. This article deals with situations where the executor is dead or missing.

Duties Of An Executor

An executor is responsible for collecting and securing the assets of the deceased, paying any outstanding debts and distributing the remainder of the deceased estate according to the will’s provisions. The executor is also responsible for organising the burial or cremation of the deceased and their funeral.

An executor must:

  • Communicate with the beneficiaries clearly and on time;
  • Act in the beneficiaries’ best interests;
  • Keep a careful account of the assets and debts of the estate;
  • Finalise the estate within a reasonable time (usually 12 months from the deceased’s death)

The executor must make an application for a grant of probate if it is a matter where probate is required.

Multiple Executors 

If the deceased has nominated more than one person as executor and one of them is dead or missing, another person named as executor may make an application for probate.

If all of the named executors are deceased or cannot be found upon the will-maker’s death, someone else can apply to the Supreme Court to be appointed to administer the estate. This application is called Letters of Administration With the Will Annexed. A beneficiary usually makes this application.

Letters Of Administration With The Will Annexed

A grant of Letters of Administration is an authorisation issued by the court allowing a person to administer an estate. A grant of Letters of Administration With the Will Annexed is issued when someone dies testate but the executor is not available to act in the role. 

If an application for Letters of Administration With the Will Annexed is not contested, the court will deal with it ‘on the papers’, meaning there will be no court appearance. The applicant – usually the main beneficiary – will then be appointed to administer the deceased estate. 

Once the court has made a grant, the administrator can take the document to those who have the estate’s assets and to the debtors of the estate and have them transfer money to the administrator to distribute.

Who Can Apply When The Executor Is Dead Or Missing?

Applications for Letters of Administration With the Will Annexed are often made by a beneficiary of the will. An application may also be made by someone else who has standing to apply. This may be the lawyer of a beneficiary if the beneficiary lives interstate or overseas. It may also be the guardian of a beneficiary who is a minor or who is under adult guardianship.

What If The Executor Dies After A Grant of Probate?

If the executor dies after probate has been granted, the role of executor will pass to the executor of the deceased executor’s estate. If the executor passes away without a valid will or there is no executor available to act, another person who has an interest in the estate will need to apply for a grant of Letters of Administration with the Will Annexed and be appointed to administer the deceased estate.

Seek Legal Advice If The Executor Is Dead Or Missing

If you are involved in a deceased estates matter where the only named executor is deceased or cannot be located, it is advisable to seek legal advice as soon as practicable. A contested estates lawyer can advise you about all the implications of an executor having passed away or being unable to be located and put you in a position to achieve the outcome you desire.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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