Sole executor of will lacks capacity & query re beneficiary who pre-deceased testator

[JoBo21]

Hello
My Dad is sole exector in the will of another family member who has just died. Problem is, my Dad has dementia so lacks capacity therefore cannot act as executor. There is no Power of Attorney in place for my Dad and we have yet to get the Court of Protection to act so someone can deal with his own issues on his behalf.

So my first question is - how can we replace him as executor please? I am happy to take on the role. Do I need a solicitor to be involved to change the executor to myself? The estate should be relatively straight forward, but will need to go to Probate.

My second question relates to the beneficiaries of the will. The will named two beneficiaries, one of whom pre-deceased the Testator, by about 6 years. Does that mean the whole of the estate will now just go to the remaining benficiary? Or does the estate of the other, now deceased beneficiary have a claim?

I hope someone can point me in the right direction please.
Thanks

[Pezza54]

Hi
You need to apply to the Court of Protection for the appointment of a deputy for your dad.
Make sure the application requests the deputy has the power to act as executor stating your father is a named executor of a deceased testator and he is now unable to undertake executor duties

[JoBo21]

Thank you, noted, thats helpful. Do you know, generally, roughly how long uch a process takes via the Court of Protection?

[Pezza54]

4 to 6 months.
You may be able to fast track the application using forms COP9 and COP24 if you can provide a good reason

[JoBo21]

I had heard it could take a couple of years, so that isnt such bad news! Thank you again Pezza.

[PallasAthena]

My second question relates to the beneficiaries of the will. The will named two beneficiaries, one of whom pre-deceased the Testator, by about 6 years. Does that mean the whole of the estate will now just go to the remaining benficiary? Or does the estate of the other, now deceased beneficiary have a claim?

Generally unless the Will specifies otherwise the deceased beneficiary's share goes back into the residuary estate and so, in your case, the remaining beneficiary gets it all. You don't say what the relationship was between the testator and the deceased but if the relationship was parent/child or similar it may work differently. See the explanation below from a law firm's advice site.

What Happens in Probate if a Beneficiary Has Died? (co-oplegalservices.co.uk)


Beneficiary Dies before Deceased


Generally if a beneficiary dies before the deceased, the beneficiary's gift will lapse (fail) and they will not inherit anything from the deceased's estate. Whatever they were due to receive will fall back into the deceased's residuary estate to be redistributed. However the deceased may make provision in their will for the gift to be redirected in those circumstances stating that if the original beneficiary dies before them then alternative beneficiaries will receive the gift instead.

This can also happen under general law in the following circumstances:

• Where a will contains a gift to a child, adopted child or grandchild of the deceased, and
• The child dies before the deceased, leaving children of their own; and
• These children of the intended beneficiary are living at the time of the deceased's death

Then, unless the will expresses a contrary intention, the gift will take effect as a gift to the children of the initial beneficiary.

In effect, this means that if a parent leaves their child a gift in a Will and that child dies before the parent, leaving children of their own, then those children (the parent's grandchildren) will receive their parent's share.

[JoBo21]

Thank you Pallasathena, very useful info, 2 beneficiaries and testator all (elderley) sisters. At least now I have a better handle on things, I will be involving a solicitor to resolve all the issues.

Appreciate the assistance.

[atticus]

Hold on...

If the deceased beneficiary is a child of the testator and him/herself had children who are living at the time of the testator's death, then by virtue of s33 Wills Act 1837 the bequest to that beneficiary takes effect as a bequest to such children - https://www.legislation.gov.uk/ukpga.../26/section/33

[PallasAthena]

OP's post #7 (which probably hadn't appeared on here when post #8 was posted) confirms the testator and the deceased beneficiary were siblings (elderly sisters)