Executors, trustees and guardians—who are they?
Executors, trustees and guardians—who are they?

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Executors, trustees and guardians—who are they?
  • Executors
  • Trustees
  • Testamentary guardians

Executors

An executor is the person appointed by the Will to carry into effect its provisions and to administer the property of the testator. The omission to appoint one or more executors does not invalidate a Will; however, such an omission is inadvisable as it would result in a period after the death when there is no one in control of the testator's estate and affairs. Executors may be appointed:

  1. expressly by Will

  2. impliedly by Will where a testator fails to nominate a person to be their executor: in such case any person who, on the terms of the Will, has been appointed to perform the essential duties of an executor is called an executor according to the tenor and is entitled to a grant of probate

  3. by a person nominated in the Will to appoint them (the nominated person may appoint themselves)

  4. through the chain of representation

  5. by the court

Section 114 of the Senior Courts Act 1981 (SCA 1981) and section 18 of the Trustee Act 1925 (TA 1925) provide that a testator may appoint any number of executors but probate will not be granted to more than four in respect of the same part of the deceased's estate. This does not prevent the possibility of a grant to four executors in respect of a particular part of the deceased's estate and another grant

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