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What happens if an Executor has lost capacity when the Will-maker dies?

An Executor is someone who is appointed in a Will to take on certain responsibilities when the will-maker (known as the “Testator”) dies. Those responsibilities include things like making decisions about the Testator’s funeral and burial, dealing with Probate (if needed), and the administration and distribution of the Testator’s estate. So what happens if an Executor has lost capacity to act?

The first step is to review and consider the terms of the Will itself. The Will may appoint an alternate Executor to act in the case that the first-named Executor has died, resigned or is incapable of acting due to a loss of capacity. If that is the case, the alternate Executor will take on the role and deal with the Testator’s estate.

If there is no alternate Executor appointed, that is the Executor appointed in the Will is the sole Executor, then a beneficiary named in Testator’s Will, or some other person, may apply to the Supreme Court for a Grant of Letters of Administration with the Will annexed in order to be appointed to act and administer the Testator’s estate.

Accordingly, when an Executor loses capacity another person will be able to step in to handle the Testator’s estate. The steps involved in dealing with the estate in these circumstances can be more complicated and so legal advice should be obtained.

If you would like to discuss the appointment of Executors in your Will or issues arising out of an Estate, please do not hesitate to contact our Estate Law Solicitors at Brazel Moore Lawyers on (02) 4324 7699.

Leading law firms committed to helping clients cost-effectively will have a range of fixed- priced Initial Consultations to suit most people’s needs in quickly learning what their options are. At Brazel Moore we have an experienced team who can answer your questions and put you on the right track.

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