Dealing with a sole executor's property

What happens if the sole executor dies intestate, after the original will was probated, but the properties (real property) were not yet distributed and the titles are in that executor's name?

Perhaps the most important step that an executor takes after a testator dies is that he applies for a grant of probate. After obtaining that grant, the executor can then register his name on the certificates of title for all real property in the estate on transmission, before transferring those properties to the beneficiaries identified in the will.

The estate will not be wound up until the debts of the estate have been paid and the gifts have been transferred to the beneficiaries. (It should be noted that the gifts cannot be transferred to the beneficiaries until the debts of the estate have been settled or if there is no money to pay the taxes and fees to cover that transfer.)

The death of an executor before an estate is wound up alwayscreates legal issues, because the things that he has left undone must be completed by someone else. The good news is that those legal issues can be resolved in different ways, depending on the stage at which the administration of the estate had reached and whether the executor died having appointed an executor or not. In other words, the question becomes whether there is a 'chain of representation' or not.

A chain of representation exists when B, the executor of A's estate, leaves behind a will in which he appoints C, an executor of his own estate, and so on. If B dies before winding up A's estate, C will step into B's shoes and not only will he wind up B's estate, he will also complete the administration of A's estate. This chain can either continue indefinitely or it can be broken because an executor dies intestate, fails to appoint an executor under his own will or fails to obtain a grant of probate of a will.

Consider the following scenarios which can emerge during the course of administration of an estate:

1. If one of several executors dies, the surviving executors have the right to continue to wind up the estate.

2. If the sole executor dies and he appointed an executor under his own will, his executor will be entitled to continue winding up the estate of the original testator.

3. If the sole or last surviving executor dies intestate (that is, without leaving behind a will) or without appointing an executor under his will, the administration of the original estate will have to be administered as if no executor had ever been appointed.

4. If the executors all die without proving the testator's will, the estate will have to be administered as if no executor had ever been appointed.

Bearing in mind that the reader's situation is scenario number 3 (above), the estate will be treated as if no executor had been appointed. The chain of representation has been broken and an administrator de bonis non must now be appointed for the purpose of administering that part of the estate which is incomplete, including the transfer of the real property to the beneficiary.

In next week's article, I will explore the steps that need to be taken to appoint an administrator de bonis non.

Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to lawsofeve@yahoo.com or lifestyle@gleanerjm.com on Twitter @lawsofeve.