When a person makes a will, they appoint one or more executors to take charge of their estate after death. It is a position of trust and responsibility, and one that can sometimes take months or even years to complete. But what happens if the executor themselves dies before the estate has been fully administered? This situation can cause confusion and delay for the family and beneficiaries, yet Irish law provides clear rules on how the administration should continue. Understanding these rules can help those involved in an estate to take the right steps if such a complication arises.
Understanding the executor’s role
An executor is the person named in a will to carry out the wishes of the deceased. Their authority does not arise automatically on death but takes effect once a Grant of Probate is issued by the Probate Office. This grant is the legal confirmation that the executor has the right to deal with the deceased’s property, close accounts, pay liabilities, and distribute the estate in accordance with the will.
The duties of an executor include:
- identifying and valuing the deceased’s assets and liabilities;
- paying any debts, taxes, or expenses from the estate;
- ensuring that any property is properly insured and maintained until distribution; and
- distributing what remains to the beneficiaries named in the will.
Carrying out these tasks can take time, especially when the estate is complex or involves property abroad, disputes, or tax issues. Executors are expected to act with honesty, care, and diligence, as they are personally responsible for ensuring the estate is properly administered. For this reason, many people choose to appoint more than one executor or name a substitute executor to provide continuity if one cannot act.
When the executor dies before probate is granted
If an executor dies before applying for or receiving a Grant of Probate, they never legally take up the role. In other words, their authority as executor has not yet come into effect. Under Irish law, once an executor dies before probate is granted, their right to act “ceases entirely,” and the representation of the estate passes as if that person had never been appointed.
In this situation, someone else must apply to the Probate Office to administer the estate. The appropriate application is known as a Grant of Administration with Will Annexed. This grant allows another person to carry out the terms of the will even though they were not originally named as executor.
The law sets out an order of priority for who may apply for this type of grant. Usually, the residuary legatee or devisee — that is, the person entitled to the remainder of the estate after specific gifts have been distributed — is first in line. If that person is unable or unwilling to act, another beneficiary or interested party may apply. The Probate Office will require evidence of the executor’s death, and the applicant will need to submit the original will, a death certificate, and other standard probate documents.
When the executor dies after probate has been granted
If the sole executor of an estate dies after probate has been granted, their authority to act ends at death, and the executorship does not pass automatically to that executor’s own executor or next of kin. The former “chain of representation” was abolished in Ireland by section 19 of the Succession Act 1965, which expressly provides that the executor of a deceased executor is not the executor of the original testator.
In these circumstances, the estate remains partly unadministered. To complete the process, a new grant of representation must be obtained, known as a Grant of Administration with Will Annexed De Bonis Non. The Latin term de bonis non administratis means “of the goods not yet administered.” This grant empowers the new personal representative to deal only with the remaining assets and liabilities that were not already fully administered by the original executor.
An application for a de bonis non grant follows the same general procedure as a first application for probate, except that the earlier grant and administration must be exhibited to the Probate Office. The applicant must show that part of the estate is still outstanding (for example, undistributed property, uncollected debts, or unresolved tax matters) and that they are entitled to take out the new grant.
Where there are multiple executors
Where more than one executor has been appointed, the administration of the estate can usually continue even if one of them dies. The surviving executor or executors retain full legal authority to act once probate has been granted. This can greatly reduce delay and uncertainty, as there is no need to apply for a new grant unless all executors have died or are unable to act.
Having multiple executors provides flexibility and continuity. It also means that decisions can be shared, which can help in managing complex or time-consuming estates. However, it is important to remember that executors must act jointly and in agreement when carrying out their duties.
The main advantages of appointing more than one executor include:
- Continuity – If one executor dies or becomes unable to act, the others can continue without interruption.
- Shared responsibility – The workload can be divided, reducing the burden on any single person.
- Checks and balances – Having more than one executor provides oversight and can help avoid mistakes or disputes.
- Practical support – In estates involving property, business interests, or beneficiaries abroad, co-executors can manage matters more efficiently.
For these reasons, solicitors often recommend appointing at least two executors when making a will. This approach helps to ensure that the estate can still be properly administered even if one executor is no longer able to serve.
Dealing with a difficult probate matter?
If an executor of an estate has passed away, and you are unsure how to proceed, the probate team at McCarthy + Co Solicitors LLP can provide expert and empathetic assistance. Arrange a consultation with us by completing our quick and confidential online form.
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