Who can be Executor of will

Probate is the legal process through which a decedent’s will is carried out and their estate is divided between the beneficiaries named in the last will and testament. The individual or group ultimately responsible for ensuring that this is done is known as the executor of will and this party is generally named in the will itself. If an individual is not named in the will then it is down to a court to decide.

Where an executor is named in the will itself, it may take one of three forms:

    * An individual – usually a spouse or close relative.

    * Professionals – for example a solicitor, bank manager or account manager. A firm can also be named.

    * Trust corporation – this is common where an individual wishes to avoid probate, for example the case of a Living Trust.

However, there are also cases where it is necessary for a probate court to arbitrate in order to determine the executor of will. This may result if no executor is named in the will, or the named executor is deceased, incapacitated or otherwise unwilling or unable to assume the duties of executor.

In this case, a court considers applications for those wishing to perform the duties and makes a ruling based on the suitability of those who apply. Generally there are restrictions on who is able to make the application – it must be a close relative or spouse of the deceased. Other considerations aside, preference is given by courts in the following order:

    * A surviving spouse or common-law partner of the deceased.

    * Children of the deceased. If one or more of the children has passed away, then grandchildren may apply in their stead.

    * Parents of the deceased.

    * Brothers and sisters of the deceased. If one or more brothers and sisters has passed away then their children may apply in their stead.

    * Any other party named as a primary beneficiary in the will.

To apply to be an executor of will an individual needs to present a death certificate and an application form to a probate court, who will then ask the individual to attend an interview. The purpose of the interview is to ascertain that information given to the court is accurate and truthful and ensure that the individual applying is suitable to be an executor of will.

The executor of will is then legally bound to carry out a number of duties, including official registration of the death, arranging the funeral and handling the decedent’s final accounts. If at any point the named executor feels unable to continue with their duties they can inform the court who will arbitrate and appoint a new executor. Most named executors hire legal firms to handle the majority of the probate administration.