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Sunday, February 16, 2014

How does the alternate executor take over when the first executor dies?

When an executor dies before being able to carry out an estate administration, an alternate executor may be named in the will. How does that alternate person proceed? A reader recently wrote to me about this. The question and my reply are below:

"My Mother was appointed as executrix and Trustee to Dad's Will. She was deceased before she completed the Probate. My sister and brother were appointed to be Executors and Trustees of the will in the Place and Stead of my mom. Do they have to do the whole Probate over again or what steps do they need to take to complete the Probate of my father's Will?"

I think what you mean in your question is that although your father's will names your siblings to take over as executors, the court has not yet confirmed that appointment. I believe what you are asking me is how they get an order of probate in their names now. When you say that your mother did not complete the probate, I believe you mean that she did in fact complete the probate process itself, but did not finish the administration of the estate. (I always like to clarify this in case I've read the question the wrong way).

Obviously, as you have recognized, your siblings have to take steps to get the probate into their name, as banks, insurance companies and land registries are not going to accept signatures from people who are not named in the probate order. However, they need not start all over. They don't have to re-do the inventory, for example. They will have to swear an affidavit that explains the situation to the court, confirms the contents of the original probate application, and requests a new probate order.

It would be a good idea for them to review the documents filed by your mother to make sure they were accurate and complete. Depending on the quality of the documents she filed, the new executors may want to file new ones. I would also suggest that they sit down with a local lawyer to get some advice as to their personal liability in acting as executors, particularly since they will be relying on documents that they did not create.

They may be required to return the original current probate document to the court in order to obtain the new one.

If notices have been sent to the beneficiaries, they should be re-sent once the new probate order is issued, as notices contain information about the executors.

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