Mum, a widow died naming two sons as her executors – there are 5 adult children in all. Of the two named executors one has taken probate with power reserved to the other (in ill health). The one with the grant has now died suddenly, and the health of the other named has worsened such he cannot deal with things.
The executor who has died did not leave a will, was unmarried but had a partner, and two adult children, and lived/held property in Scotland.
The England house sale is now stalled and funds remain in the bank / investments.
? Scottish executor of the now deceased intestate executor takes confirmation in Scotland and becomes ‘executor of the executor?
On the basis that the proving executor is said to have obtained “probate”, the will was proved in England & Wales. Accordingly, I would not expect Scots Law to apply to the administration of the mother’s estate, notwithstanding that Confirmation may be required to administer the executor’s own estate.
As the proving executor left no will, there can be no “chain of representation”.
Accordingly, either the non-proving executor can apply for a grant of double probate (which seems unlikely in the circumstances), or one or more of the other beneficiaries (or their attorney) applies for a grant of letters of administration “de bonis non administratis”. This assumes that, despite their “ill-health”, the other named executor is mentally capable and can formally renounce their right to probate.
If the non-proving executor lacks mental capacity, the intending administrator(s) will need to consider the need to communicate with the Court of Protection (as required under £35, Non-Contentious Probate Court Rules 1987).
Or the non-proving executor could appoint an attorney to act on his behalf in the administration, assuming he has sufficient capacity to appoint an attorney.
Thanks for the replies.
New information (to be confirmed) is the non-proving executor had appointed attorneys (LPA) and so we will investigate this route i.e. the appointed attorneys taking the grant in the name of the non proving.