Can someone please help as i am struggling to find the answer (practical) for this situation:
A died appointing B (surviving spouse) sole executor (and C and D as replacement executors “if unwilling or unable to prove it”).
B obtained probate and has since died having left part of the estate unadministered.
B left a will appointing C as executor. D - (as attorney for C) has obtained Admin with will for B’S estate.
B has not fully administered the estate (shareholdings located during administration of B’s estate but after admin with will obtained.
My understanding was that either:
the Chain of representation applies - and C (by their attorney D) can act
or
the chain is broken because the attorney is not the named executor in the will of B.
However - i can find no legal authority other than section 7:
(1)An executor of a sole or last surviving executor of a testator is the executor of that testator.
(2)So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.
(3)The chain of such representation is broken by—
(a)an intestacy; or
(b)the failure of a testator to appoint an executor; or
(c)the failure to obtain probate of a will;
but is not broken by a temporary grant of administration if probate is subsequently granted.
What then is the solution:
Apply for further representation in the estate of B to C - reinstating the chain of representation?
Apply De Bonis Non in estate of A to C (who is also the sole beneficiary?
Is there any legal authority that states that an attorney appointed in B’s estate breaks the chain other than S7?
Although not a solicitor, I don’t understand why you state “A died appointing B (surviving spouse) sole executor (and C and D as replacement executors “if unwilling or unable to prove it”).” then subsequently suggest that D is not named in A’s Will. You suggest that B had not fully administered A’s Estate before their death, so A’s Estate still required some administration and the combined Estates would devolve to C.
In the case of B’s Estate, although D may not be explicitly named (and is acting as attorney for C) they appear to have already obtained probate for B, so what is the problem?
Forgive my ignorance if I have missed something obvious.
This is what my original question is asking. My initial thoughts were that the chain of representation is intact. (in simple terms, two wills, two grants).
However further research brings more questions than answers.
B was the sole executor of A. C and D cannot act as replacement executors in A’s estate as the grant of probate was obtained by B - (B was not unable to prove it, probate was obtained)
So the question is - do the NCPR apply to A’s estate or the chain of representation apply.
From what i can gather from research and it is not conclusive enough for me to be satisfied:
the chain of representation has been broken because the executor named in the will is not the proving executor in B’s estate, it is their attorney. The grant in B’s estate is not therefore a grant of probate (in which the executor named in the will has proved the will) but Letters of Administration(with Will annexed) because it is the attorney of a named executor who has proved, not the named executor.
Section 7 indicates that if C obtains further representation in B’s estate as the named executor (a grant of probate) then this resurrects the chain of representation.
My question is not one of beneficial entitlement - but of how to obtain the correct grant to administer the unadministered estate of A. C is the beneficiary of both wills and the person entitled to make the application under NCPR.
The share registrars are asking for a grant de bonis non as they state that the chain of representation has been broken.
My understanding is that a chain of representation is only effective when there is an executor who has taken probate at each level. Where an attorney obtains a grant, they are not an executor and, so, the chain is broken.
Had C been a named executor of A with power reserved – a subsequent grant to them would be probate and the chain might have been revived.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I agree with Paul Saunders that the chain of executorship is broken when a later executor fails to prove the Will. The only exception is if the Grant of Administration is temporary. We have no evidence that the Grant to D is a temporary administration (such as C being overseas and later returns to the UK and C then takes out a Grant). If C in fact takes out a Grant of Probate then C can complete the administration of of both B’s and A’s estates. If therefore the Grant of Administration to D is not temporary (i.e. C does not take out a Grant), then a Grant de Bonis Non must be obtained for A’s estate. In such a case it is probable that D cannot apply for a Grant De Bonis Non as such Grant De Bonis Non can only be to those entitled to a Grant of Letters of Administration on an intestacy of A.
Yours sincerely,
Peter Double / Probate Resealing Services