Commonly, when a couple make their Wills, they do so together. Frequently each person gives everything to their spouse and appoints that spouse as the sole Executor, provided that spouse survives them. Then on the death of the second spouse, the Will normally leaves the estate to other people usually the children and appoints another Executor. Both wills mirror each other. But what happens if the sole named Executor named in the Will survives the spouse but does not have capacity to act as Executor? This may arise due to diagnosis of dementia or Alzheimer’s disease.
If the estate, requires a Grant of Probate, the surviving spouse will not have capacity to sign the paperwork required or give instructions to the solicitor.
In this situation, the people named in the Will as the beneficiaries taking the residue have the entitlement to act as Administrators of the Estate, instead of the named Executor. This will usually be the children. If the Will says, ” I give, devise and bequeath all the rest, residue and remainder of my estate to… ” This is the residue clause .
All of these named people have an equal entitlement to apply to the Probate Office to act as administrator. Only one administrator is required.
An Affidavit from a doctor will have to be submitted to the Probate Office confirming the sole named Executor does not have capacity to act. An Affidavit from the person applying, setting out the circumstances will also have to be submitted to the Probate Office.
The Probate Officer will review the application and will issue a Probate Officer’s Order authorizing the named person to administer the estate.
Then the usual paperwork is submitted to the Probate Office with this Order.