Between Deputyship and Executorship

[MrCake]

I was a CoP Deputy for a relatives' financial and property affairs. She has now died. I was appointed executor under her will together with a firm of solicitors. They have agreed for me to handle probate, with "power reserved".

Just before my relative died, I agreed to the renewal of a tenancy of her property, but I only received the relevant documents to sign from the managing agents after her death.

I think that I now have no authority to sign these documents until I have been granted probate. Is that correct?

Or am I allowed to sign as a deputy because it is something I agreed whilst I did have deputy powers?

Or is there some kind of pre-executorship method of dealing with pressing matters?

[Lootman]

I had a big argument with a solicitor about a very similar issue, regarding my mother's estate. I had a POA to act on her behalf, so similar but not exactly the same as your case. And I was the executor of her Will. So I took the view that my ability to act was seamless and continuous. At the point where one power ceased, the other commenced.

And the issue was my ability to rent out my mother's now vacant home. (Although I only made that decision post-mortem).

Anyway my mother's solicitor, who was not a named executor but who did prepare the Will, so I consulted him, claimed that I could not rent out her property without the Grant of Probate. I argued that I could and that the Grant is really only necessary for financial institutions that will not release assets without it. (And obviously I could not sell the house but then I wasn't trying to). It's a documentary aid to executorship but not necessary for it - after all in some cases an executor doesn't need it at all.

Now, I'd normally take the word of a solicitor but what he said made no sense. My power derives from the Will and becomes effective upon death. So I ignored him, and executed the rental with no problem. A few weeks later the Grant came through and the issue became moot anyway.

So, consider this less than formal advice, but rather a real-life narrative. And no doubt someone will construct a scenario where this might have rebounded. But given the rent I (or rather, the Estate) received, I considered it a viable risk to take.

[MrCake]

Lootman,
thanks for that. I tend toward the same line of thinking. It's just a matter of timing and I wouldn't be harming anyone (apart from a few small bequests, my sister and I share the property and rest of the estate 50/50 and she is fully on board with the lease renewal).

I am concerned though to act fully in accord with the law because I am a Chartered Accountant and my institute would, quite rightly, take a dim view of me signing anything I shouldn't have, even if noone lost out from it. I doubt it would ever come to that, but I'm keen not to chance it.

[Gengulphus]

... And no doubt someone will construct a scenario where this might have rebounded. ...

In that sort of scenario in general, where the same person is attorney or deputy before death and a will appoints them as executor after death, it's dead easy to construct specific cases where it might rebound. Two examples of such cases are when there turns out to be a later will that appoints a different executor who wants to do something different with the assets concerned, and when the estate turns out to be insolvent and the executor ends up regretting ever having taken on the job by 'intermeddling' with the estate's assets rather than leaving it to the creditors to sort out.

I fully accept that there are cases in which one can be pretty certain that no such problems exist, and no doubt your specific case was one of them. But others' specific cases might have a significantly higher chance of them!

Gengulphus

[Clitheroekid]

I am concerned though to act fully in accord with the law because I am a Chartered Accountant and my institute would, quite rightly, take a dim view of me signing anything I shouldn't have, even if noone lost out from it.

You need have no concerns on that score. As has been said, your authority to act as executor derives from the Will, not the grant of probate, so although the POA ceases to be of any legal effect on death you can quite legitimately act as executor as from the moment of death.

In this case you are therefore entitled to sign the tenancy agreement as executor and it would be a legally binding agreement.

Gengulphus is right to say that there are certain risks involved in acting as executor without a grant of probate, one risk being, as he said, that the Will you're executing is for some reason invalid. Without knowing all the background circumstances it's impossible for me or anyone else here to assess the risk, but the fact that the Will's already been inspected and approved by the solicitor would tend to indicate that any risk is pretty small.

[MrCake]

Thank you CK. That's very clear.