Can an executor of a will be a minor? Danielle Pawson, an Associate in the Contentious Probate team at Wright Hassall, explains who applies for probate if the executor of a will is under the age of 18.

Can a minor be an executor of a will?

An executor is a person who has a legal duty to deal with the estate (money, property and possessions) of a deceased person and carry out the wishes set out in that person’s will.

Executors are chosen by a person when making a will and named within the document. A person can choose to appoint one or several executors.

According to section 188 of the Senior Courts Act 1981, a minor can be named as an executor in a will but cannot act as an executor or apply for a grant of probate until they reach 18 years of age.

Who applies for probate if the executor is a minor?

Where a minor has been named as an executor, the procedure to be followed depends upon whether they have been named alongside another person who is an adult, or whether they have been named alone.

If a minor is a joint executor

If a minor has been appointed as an executor jointly with one or more other executors who are adults, the adult executors may obtain a grant of probate with power reserved to the minor executor. This does not mean that the minor loses the right to act as an executor because they are not 18 years old at the time of the adult executor’s application for a grant of probate.

The minor executor retains their right to a grant of probate and if the administration of the estate has not been completed by the time the minor reaches the age of 18, they would be entitled to apply for probate (Rule 33(1) of The Non-Contentious Probate Rules 1987). For example:

• John dies leaving a will which names his children Jacob and Jasmine as executors of his estate. The will states that Jacob and Jasmine are to receive the residuary estate in equal shares. At the time of John’s death, Jacob is 21 years old, and Jasmine is 17 years old. Jacob can apply for a grant of probate with power reserved to Jasmine and if the administration of John’s estate has not concluded by the time Jasmine turns 18, she could apply for a grant of probate.

If a minor is the sole executor

If a minor has been appointed as the only executor by the will, certain individuals may obtain a grant of letters of administration with will annexed for the use and benefit of the minor. A grant which is for the use and benefit of a person means that the grant is issued to someone who can act on behalf of, or represent, the person entitled to it.

The individuals who may obtain a grant in those circumstances are either:

• if the minor is entitled to some or all of the residuary estate – someone with parental responsibility for the minor including individuals, authorities or agencies (Rule 32(1) of the Non-Contentious Probate Rules 1987)
• if the minor does not have any entitlement to the residuary estate – the individual who is entitled to the residuary estate (Rule 32(2) Non-Contentious Probate Rules 1987)

For example, using the same scenario as detailed above:

• If John had only named appointed Jasmine as the executor of his will, she would not be able to apply for a grant of probate at the time of John’s death. As such, the person or authority who had parental responsibility for Jasmine at that time could apply for a grant of letters of administration with will annexed for the use and benefit of Jasmine.

Can you replace an executor of a will?

Yes, the executor of a will can be removed and replaced with someone else. The procedure which needs to be followed to replace an executor depends upon the actions of the executor in respect of the estate at the time that their replacement is being contemplated.

Prior to an executor obtaining a grant of probate, an application to remove and replace them with someone else can be made under:

• Section 116 of the Senior Courts Act 1981 (“S116”)
• Section 50 of the Administration of Justice Act 1985 (“S50”)

In order to succeed with an application under S116, it must be shown that there are ‘special circumstances’ or it is ‘necessary and expedient’ to appoint someone other than the person(s) entitled as the administrator of the estate. An example of ‘special circumstances’ could be that the person entitled has renounced and there is no one else who is able and willing to act. When an executor renounces, they are in effect giving up their legal responsibility to deal with a person’s estate.   

There is no requirement to show ‘special circumstances’ or that it is ‘necessary and expedient’ to appoint a replacement administrator when making an application to remove and replace an executor or administrator under S50. The procedure under S50 can also be used to remove and replace an executor or administrator who has already obtained a grant of probate or letters of administration.

Each of these routes requires applications to be made in accordance with different rules and to different divisions of the court. As such, whilst it would be possible to use either route to apply to replace a minor executor, in circumstances where it was not appropriate to obtain a grant for the use and benefit of the minor, the procedure to be adopted would depend on the circumstances of the particular estate in hand.

About the author

Danielle Pawson is an Associate in the Contentious Probate team at Wright Hassall who specialises in disputes relating to wills, trusts and the Court of Protection.

See also

The duties of an executor: what to do when someone dies

How does probate work if the named executor dies?

How to remove an executor of a will

What happens when joint executors or attorneys disagree with each other?

Find out more

Senior Courts Act 1981 (Legislation)

The Non-Contentious Probate Rules 1987 (Legislation)

Administration of Justice Act 1985 (Legislation)

Image: Getty Images

Publication date: 23 June 2022

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.