Q: My mum prepared a will prior to her death, appointing me and both my brothers as her executors. One of my brothers was recently diagnosed with cancer and my other lives in Canada. It is therefore not possible for us all to get together to sign any paperwork. Could I alone apply for probate?
A: It is not necessary for every executor named in a will to be appointed as an executor by the Probate Registry. For the purposes of probate, some executors can have power reserved to them, which means the postponement of their right to the grant of probate. This does not mean them completely relinquishing their rights as an executor, as they can still apply for probate at a later date should the need arise.
Formal notice must be given to an executor when they are acting with power reserved. Your solicitor can assist with this. Power can be reserved to one or more executors provided there is still one executor left to make an application for a grant of probate.
In your case, the role of executor may be too time consuming and demanding on both your brothers and the administration of the estate may be delayed if you have to send paperwork to and from Canada, to make the application, or collect in the assets. Therefore, either or both of your brothers could abandon their right to becoming an executor by signing a renunciation witnessed by an independent witness who has no interest in the estate.
One of the conditions allowing a renunciation is that the executor should not have inter-meddled with the estate, i.e. they have not assumed any administrative responsibilities and started to handle any of the funds. As it appears that neither of your brothers have yet had any dealing with the estate, both options of power reserved and renunciation are open to you should you wish to make an application for probate in your sole name.
This question has been answered by Jessica Wright, a Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194
