In the UK probate process, Executors are responsible for handling a deceased person's estate according to their Will. However, when multiple Executors are named in a Will, it's not always necessary for all of them to be actively involved in administering the estate. One option available is the concept of "Notice of Power Reserved." This allows an Executor to temporarily step back from their duties without completely giving up their role. In this blog, we'll explore what "Power Reserved" means, how it works, and when it might be used.
Under UK probate law (specifically, the Probate Rules 1987), Executors are appointed by a deceased person's Will to administer their estate. Their primary responsibilities include:
Ensuring the estate is distributed in accordance with the terms of the Will.
Paying off any debts and liabilities.
Obtaining a Grant of Probate from the High Court.
Acting as an Executor can be a significant undertaking, requiring time, effort, and a good understanding of legal and financial matters.
In many Wills, more than one Executor is named. This is often done as a safeguard to ensure there is someone available to act, even if one Executor is unable or unwilling to do so.
But what happens if one of the Executors doesn't want to take on the responsibilities right now? This is where "Power Reserved" comes in.
"Power Reserved" is a legal mechanism under the Probate Rules 1987 that allows an Executor to temporarily step back from their duties without renouncing their role entirely. This is typically used when:
An Executor is unable or unwilling to act immediately.
There are multiple Executors appointed and one wishes to defer their involvement.
To utilise "Power Reserved," there must be at least one other Executor willing to take on the active role of administering the estate.
When an Executor has power reserved, they are still technically an Executor, but they won't be involved in the estate administration unless they choose to step in later. This approach provides flexibility, allowing an Executor to take a back seat for now while leaving the door open to participate later.
The process of using "Power Reserved" involves the following steps:
Notification: The Executor who wishes to step back informs the other Executor(s) of their intention.
Notice to the Court: The acting Executor applies for the Grant of Probate, explicitly stating that power is reserved for the non-acting Executor.
Court Approval: The court grants Probate to the acting Executor, noting the reserved power.
The Executor with power reserved remains technically an Executor but does not participate in the estate administration unless they choose to do so later.
There are several situations where "Power Reserved" could be beneficial. Here are some common examples:
Geographical Distance: An Executor may live abroad or far from where the estate is being administered, making it impractical for them to be involved in the day-to-day tasks required during probate. In such cases, reserving power allows them to step aside while ensuring the estate administration continues smoothly.
Health or Capacity Issues: An Executor might be in poor health or living in a care home, making the role too demanding. Rather than renouncing their role entirely, they can reserve power and allow the other Executor(s) to handle the estate.
Other Commitments: Sometimes, an Executor might simply be too busy with their personal or professional life to take on the responsibilities of probate. Power reserved offers a solution that respects their role while acknowledging their current limitations.
In all these scenarios, power reserved provides a practical solution that balances the need for effective estate management with the varying circumstances of each Executor.
It's important to distinguish between reserving power and renouncing the role of Executor.
Renunciation is a formal and permanent step where an Executor gives up their right to act entirely. Once renounced, the Executor cannot later reclaim their role in the estate administration.
Power reserved, on the other hand, is temporary. It allows the Executor to step back for now while retaining the option to become involved in the future. This flexibility is particularly useful if an Executor's circumstances change, or if there's a later need for their involvement in the probate process.
In summary, power reserved is the better option when an Executor is willing to let others take the lead but does not want to permanently forfeit their authority.
One of the main benefits of reserving power is that it's not a permanent decision. If circumstances change, an Executor who initially had power reserved can later decide to step in and become actively involved in the estate administration.
This might happen if, for example, the acting Executor encounters difficulties in managing the estate alone, or if the non-acting Executor's situation changes, allowing them to contribute more effectively.
To reverse power reserved, the non-acting Executor would need to make a formal request, and the court would update the Grant of Probate to include them. This flexibility is key to why reserving power is often preferred over renunciation.
It allows Executors to be adaptable and responsive to changing situations while still protecting the administration of the estate.
When power is reserved, the responsibilities of managing the estate fall solely on the acting Executor(s). This means they will handle tasks such as:
Collecting and valuing assets.
Settling any outstanding debts.
Paying any inheritance tax due.
Distributing the estate according to the Will.
The non-acting Executor with power reserved is not involved in these activities unless they choose to step in later. This means that the acting Executor(s) have full authority to make decisions regarding the estate, but they also bear the full burden of the responsibilities.
It's also worth noting that the presence of an Executor with power reserved does not delay the probate process. Once the acting Executor obtains the Grant of Probate, they can proceed with estate administration without needing to consult the non-acting Executor.
However, if the non-acting Executor later wishes to be involved, this could add complexity, as the Grant of Probate would need to be amended.
If you need professional assistance, Premier Solicitors, a leading UK law firm, offers expert and affordable legal services in Probate (Contentious and Non-contentious) and Estate Administration.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form. We're here to help you navigate the probate process with confidence and ease.
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