Where a person is preparing a Will, they usually decide to choose people they trust to act as Executor and deal with their estate upon their death. This is usually members of the family or close friends. It is quite common, and recommended, for the Deceased to have appointed more than one person as Executors.
Where this is the case, they will all need to work together to deal with the Estate, although only 4 are able to be named on the Grant of Probate.
Circumstances can arise where one or more of the named Executors are unable or unwilling to act as the executor of the Will. There are many reasons for why this may be the case; they may reside in a different country which means it is not practical for them to be an active Executor, they may be in poor health and the role would be too burdensome, or, they may simply feel that the role of executor is too emotionally difficult to carry through, following the death of a loved one.
The role of Executor is one of great responsibility, a number of duties which must be complied with but there is no legal obligation for the person named to take on the role. Whatever the reason may be for this, the named Executors have the option to either renounce the role entirely, which they may feel is too drastic, or instead, opt to have Power Reserved to them.
How does Power Reserved work?
Power Reserved means the Executor will not be actively involved in the administration of the Estate, at that present time, however reserves the right to do this at a later date in the future. The Executor has not completely given up their power as Executor, but is simply agreeing to the other named Executors administering the Estate without them in the meantime.
The remaining Executors will apply for the Grant of Probate on which it is noted that the non-acting Executor has Power Reserved to them. They are then able to administer the Estate as necessary and the non-acting Executor is not required for the process, until the point they wish to become involved.
What if the non-acting Executor wishes to administer the Estate?
Circumstances may again change, and the Executor not initially named on the Grant of Probate may have relocated to the same country, another Executor may have passed away or they may now feel more emotionally prepared to take on an active role in administering the Estate.
In this case, as the non-acting Executor had retained a right to take on a more active role at a later date under the Grant of Probate, all they would need to do is make a further application to the Probate Registry, to obtain a Grant of Double Probate.
Once the Grant of Double Probate has been obtained, any documentation that is required in relation to administering the Estate will need to be signed by all the Executors.
What liabilities may the Executor with Power Reserved have?
If the Executor has power reserved, a claim would not normally be made against them as they would have limited liability. Any claims are usually made against the individual Executor causing the breach. However, once a Grant of Double Probate has been obtained, then they have the same duties and liabilities as the Executors named on the original Grant of Probate.
If you have been named as Executor and are having concerns about being able to act in this role, you should consider seeking further legal advice to consider the options available to you.