Choose your executor/executors with care

If an executor of a Will loses mental capacity, this can cause problems and delay in administering the estate.

It is advisable when making a Will to appoint more than one executor, and for at least one of the executors to be younger than you. This minimises the chances of the executors pre-deceasing or losing capacity before or around the time of your death. Of course, if one of your executors loses capacity during your lifetime, you can change your Will and appoint someone in their place (providing you have the capacity to do so). However, many people do not review their Wills regularly enough and die without realising that the executor they appointed many years ago has since lost capacity.

In such circumstances, and if a Lasting Power of Attorney was not drawn up by the executor, an application should be made to the Court of Protection for a Deputy of Property of Affairs to be appointed for the executor. The application should ask for specific authority to deal with the deceased’s estate. A Court appointed Deputy will satisfy the probate registrar, who can then issue the grant to the Deputy.

The Deputy will of course also be in charge of managing the finances of the executor who lacks capacity, as well as dealing with the deceased’s estate, which will be beneficial if not essential to the one who lacks capacity.

We recommend that you choose more than one executor and that at least one of your executors is younger than you.

If you would like to meet with one of our Consultants to discuss any of the issues raised in this article or any other Estate Planning topic please telephone 01732 868190 or click here.

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