When you’re named as an executor in someone’s Will, you’ll have the right to take on the task of administering their estate. What exactly this role will entail will depend on the circumstances of the estate. For some simple estates, you might not need to apply for a Grant of Probate to wind them up. However, in many cases you will need to make an application.
A Grant of Probate is a legal document that proves that the executors named on it have the right to deal with an estate. You will usually need to show this document to any financial institutions where the person who has died held an account in order to be allowed access to those accounts. If you are selling property on behalf of an estate, you will need to produce a Grant of Probate to prove that you have the right to do so before contracts can be exchanged.
What happens if more than one executor is appointed?
It’s very common for more than one executor to be appointed in a Will. For example, when someone dies, they often name all of their children as their executors.
In these cases, the people who have been named as executors will typically work as a team to administer the estate. This may mean that they work on each part of the process together, or it may mean that they all take on separate areas of responsibility. Either way, in these situations the executors usually apply for the Grant of Probate collectively.
What if not all executors choose to act?
When someone is named as an executor in a Will, they do not have to agree to take on the role. Acting as an executor is a big responsibility and can involve a great deal of work. There are all sorts of reasons why an individual may not feel able to do so.
If a person was to decide that they can’t – or don’t want to – act as an executor for an estate, they would have two choices:
- They could formally renounce their right to act as executor completely.
- They could decide not to act as an executor currently, but reserve the right to do so in the future if they change their mind. This is called having ‘power reserved.’
When does double probate come in?
Double probate is the situation that arises if a named executor who has ‘power reserved’ changes their mind and wishes to start acting on behalf of an estate after a Grant of Probate has been issued.
There are many reasons why this might happen. It could be because:
- The executor(s) who originally applied for the Grant of Probate are unable to continue to act.
- Someone who was unable to act as an executor due to existing responsibilities, their health or their location has a change in circumstances.
- It becomes clear that the scope of administering the estate is bigger than expected and the executors named on the original Grant of Probate need help.
Whatever the situation, if a named executor with power reserved wishes to take up their role and start acting on behalf of the estate, they cannot do so if they are not named on the original Grant of Probate. Instead, they will need to put in their own application for a second Grant of Probate.
When this second Grant of Probate is issued, it will run concurrently to the first grant. (Assuming that the executor or executors named in the first grant are still alive).
When this happens, the situation is referred to as ‘double probate’.
How do you apply for double probate?
Applying for a second Grant of Probate is a very similar process to applying for the first.
The executor with power reserved will need to complete all the same tasks as they would if they were applying for a Grant of Probate in any other situation, including notifying all interested parties.
However, their application would also need to include:
- The details of the existing Grant of Probate that was in place for the estate.
- Proof that they had ‘power reserved’.
- Information about the work that was needed to finish the process of administering the estate.
When a second Grant of Probate is granted, it will usually grant only the rights to deal with the parts of the estate that are still to be administered.
How does double probate work in practice?
Let’s consider an estate where the person who has died named their two daughters as their executors. Daughter A is overseas in the time after the death, and daughter B has to apply for probate alone. Daughter A does not formally renounce her right to act as executor and instead holds power reserved. Six months later, daughter A returns to the UK and decides she wants to be able to help daughter B to finish administering the estate. In order to have the legal right to do this, daughter A needs to apply for a second Grant of Probate.
Daughter A lodges an application with the probate office that includes details of the grant that has been issued to daughter B. She also includes proof that she was named as an executor in the original Will and that she has power reserved. Finally, she adds information about what still needs to be done to finish administering the estate.
Once the second Grant of Probate is issued, daughter A and daughter B can continue the process of administering the estate with double probate. If you’re currently responsible for administering an estate and you think there is a need to apply for double probate, you might be unsure about how to navigate this. It may be helpful to speak to a specialist probate solicitor who can help you to untangle the situation and advise on the next steps.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like to discuss how we can assist, please contact us.