Q&As

Can an enduring attorney for a donor who has lost capacity but is an executor of an estate continue to act as the trustee of a discretionary Will trust and appoint additional trustees?

read titleRead full title
Produced in partnership with Adam Draper of Shoosmiths
Published on LexisPSL on 12/08/2016

The following Wills & Probate Q&A Produced in partnership with Adam Draper of Shoosmiths provides comprehensive and up to date legal information covering:

  • Can an enduring attorney for a donor who has lost capacity but is an executor of an estate continue to act as the trustee of a discretionary Will trust and appoint additional trustees?
  • Acting as executor
  • Discretionary Will trust

Acting as executor

If a person is appointed as executor of an estate and has lost capacity, they cannot apply for the grant of probate.

In those circumstance and assuming there is no co-executor, Rule 35 of the Non-Contentious Probate Rules 1987, SI 1987/2024 permits the registrar to appoint:

  1. the person authorised by the Court of Protection to apply for a grant

  2. where there is no person so authorised, to the lawful attorney of the incapable person acting under a registered enduring power of attorney, and

  3. where there is no such attorney entitled to act, or if the attorney shall renounce

Related documents:

Popular documents