If Probate of Your Will Has Been Granted:
If probate has been granted to your executor, and they subsequently pass away, it creates a “chain of representation”. This means that the person your executor chose to administer their estate will also administer your estate once they obtain probate for your executors’ estate. There is a chance that you may not have known this person, which means that, aside from the contents of the terms of your will, they will not be aware of your wishes and intentions. This is obviously not desirable and can lead to difficulty and uncertainty for your surviving loved ones.
When Probate Has Not Been Granted:
If your executor passes away before probate of your estate has been granted, the “chain of representation” is broken. Instead, an application for letters of administration with will annexed would need to be made to the High Court. The High Court will appoint the person with the highest priority under rule 27.35 of the High Court Rules 2016. This could be your children, your parents, or other family members depending on your situation. In some cases, this outcome may not reflect your wishes. Needing to obtain letters of administration, as opposed to probate, can also place a heavier burden and cost on your loved ones through what can already be a challenging time.
What To Do:
You should name back up executors because it will help to ensure your estate is administered by people suitable for the task at hand. It means that if your executor was unable to act after you pass, you know that someone you consider competent will fill that role. Having back up executors provides greater certainty and allows you the chance to discuss your wishes with them in advance.
We recommend that you regularly review your will to ensure it is well drafted, in a way that reflects your current circumstances and wishes.
At Burley Castle Hawkins Law we have a highly skilled team who are well equipped to guide you through the drafting of your will. If you are thinking about making or updating your will, please do not hesitate to get in contact with us.
By Bronte Hemmings | Law Clerk | 07 571 7006 | bronte@bchlaw.co.nz
The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter.
