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Acting as an executor can be a heavy burden. There’s a lot of admin, time and sometimes expense involved in administering someone’s estate. Many of us would only agree to take this on for our loved ones – while they, in turn, are likely to have agonised over who to appoint in this vital role.
But there’s one important rule that can throw all this careful planning out the window, which means you could end up as an executor for someone you’ve never even met.
The “chain of representation” rule only applies in very specific circumstances and is designed to keep the administration of an estate running smoothly. But it can still cause chaos to those involved.
We’ve spoken to solicitors and estate planning experts to find out how this rule works, and how you can avoid the complications it brings.
What is the chain of representation?
The chain of representation is a legal rule in England and Wales that applies if an executor dies before completing the job.
Joe Cobb, of JMW Solicitors, explained: “If someone is the sole executor, or the last one left, of an estate, they get probate to deal with it. If they then die before finishing that job, and their own will names an executor, that person doesn’t just inherit their estate – they also inherit the unfinished job of administering the earlier estate too.
“It’s a neat legal fix, designed to stop families having to apply for a fresh grant of probate every time an executor dies before the work is done.”
How it works in practice
Let’s say Jack has been appointed as executor for his friend Kate’s estate. After Kate dies, he obtains a grant of probate in her name and begins administering her estate.
Before he has finished, Jack dies. In his own will, he has appointed his son Nick as his executor. This means Nick now steps in to manage Jack’s estate, and, through the chain of representation, Nick also continues to administer Kate’s estate.
The chain of representation can continue through successive executors. So, if Nick were to die mid-way through his role, his own executor could end up administering the estates of Nick, Jack and Kate.
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Why does the chain of representation exist?
The chain of representation exists to protect families from unnecessary delays and additional court applications.
Thomas Kendrick, of estate planning firm Honey Legal, explained: “Without the chain of representation, every time an executor died before completing an estate, the administration could come to a standstill while a new application was made to the court for authority to continue.
“Instead, where the legal requirements are met, the chain of representation provides continuity by allowing another executor to pick up where the previous one left off.”
However, the chain of representation can produce some unexpected outcomes. In some situations, you could end up administering the estate of someone you’ve never met. Equally, your own estate could end up being dealt with by someone you never knew.
When does the chain break?
The chain of representation is only as strong as the next executor, according to Rachel Winter, of law firm Birketts.
She explained: “If there is no executor willing and able to act, the chain breaks. Therefore, if an executor dies without leaving a will or without appointing an executor in their will, or an executor dies before they obtain a grant of probate, the chain ends.”
In these situations, it may be necessary to apply for a “grant de bonis non administratis”, which allows someone else to step in to continue the administration of the estate. However, obtaining one can add time, costs and complexity to the probate process.
The chain of representation also won’t usually apply if there is more than one executor.
Ms Winter said: “Where multiple executors obtained probate and one subsequently dies, the surviving executor or executors generally continue the administration.”
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What problems can arise from chain of representation?
While the chain of representation is designed to prevent unnecessary delays, it can create challenges for the person taking over.
An executor may find themselves managing more than one estate at the same time, meaning they need to keep separate records, deal with tax liabilities, and complete paperwork for each estate.
The role can be even more difficult if they have never met the deceased or if they have little understanding of the deceased’s financial affairs.
Dean Ryan, of law firm Payne Hicks Beach, said: “The main issue is that an executor can inherit responsibility for an estate of which they have little or no knowledge. They may have no information about the deceased’s assets, liabilities, beneficiaries or the steps already taken by previous executors.
“This can create delays, take up a lot of personal time – sometimes many months, depending on how complex the estate is.”
Problems can also arise if records are incomplete or if there are disputes between beneficiaries, which can be hugely stressful.
Mr Ryan said: “The successor executor may need to incur significant professional costs to reconstruct the history of the administration and establish the estate’s position.”
How to reduce the risk of complications
There are several steps you can take to make it easier for your loved ones, or a successor executor, to deal with your estate if your original executor dies before completing the administration.
One option is to appoint two or more executors of your estate so if one dies, the surviving executor can take over the role without the chain of representation needing to apply.
Hugo Smith, of law firm Wedlake Bell, added: “For older testators, it can also be a good idea to ensure that at least one of their appointed executors is from a younger generation.
“The only way to completely avoid the risk would be to appoint a trust corporation as executor, as a company will never die. This is a service offered by many professional firms. A trust corporation could either be appointed as the only executor, or in addition to family members.”
It’s also worth reviewing your choice of executors whenever you update your will and maintain accurate records of your assets and important documents. This will make life easier for whoever is ultimately responsible for administering your estate.
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