Getting a property back into use where an executor lacks capacity

Getting a property back into use where an executor lacks capacity

What is the issue?

Administering an estate can take a considerable period of time, especially where the deceased owned a property. 

Anyone working with empty homes will have no doubt encountered difficulties when a property owner dies and there is a delay in administering their estate. Some of the common reasons for this usually involve disagreements within the deceased’s family, disputes over the terms of any will or delays in tracing the persons entitled to administer the estate.   

However, the estate administration can also be prolonged or even come to a halt if an executor or administrator is unable to act due to a lack of capacity. This can in turn lead to a long-term empty property which, as we all know, can create problems for the surrounding neighbourhood and impact on the value of the property for the deceased’s estate.  

Assessing Capacity 

We are probably all familiar with the key principles of the Mental Capacity Act 2005 and how to assess a person’s capacity. 

It is always worth remembering that the test of capacity is function specific. Therefore, in the context of an estate the key question is - can the executor or proposed administrator make a decision for themselves in relation to the application for a Grant of Representation and subsequent administration of the estate of the person who has died?

In complex cases, especially where a person’s capacity can fluctuate, it is sensible to engage a medical professional to assist. 

Look for an alternative 

Where an executor or proposed administrator lacks capacity, it may be possible for someone else to take on the responsibility for the administration of estate. In cases involving a will, check for any named co-executors as it may be possible for the incapable executor to have power reserved (effectively taking a ‘back seat’ in the process). Alternatively, the will may already cover this eventuality by having a substitute executor appointed if the original executor is unable to act. 

For an intestate estate, a relative of the deceased who is equally entitled to take out a grant of letters of administration along with the incapable person may be willing to act instead. 

Remember Rule 35

In cases where the sole executor or only person entitled to act as administrator lacks capacity to act, you should look to Rule 35 of the Non-Contentious Probate Rules 1987 which allows a grant of representation to be obtained for their use and benefit in the following order of priority:

  1. Any person authorised by the Court of Protection.

  2. The lawful attorney under a registered Enduring or Lasting Power of Attorney (Property & Affairs).

  3. The person entitled to the residuary estate. 

  4. A person appointed at the discretion of the Registrar at the Probate Registry.

It may not always be clear if a person has a deputy or attorney appointed to act on their behalf. Remember that you can search the records of the Office of the Public Guardian in order to clarify the position. This is done using form OPG100 and is a free service. 

What if a grant has already been obtained?

In situations where a grant of probate has already been obtained by a sole executor then a new grant can be obtained by the persons who are equally entitled. Where an executor had power reserved at the time the original grant of probate was obtained, a further grant (referred to as ‘Double Probate’) can be obtained which runs concurrently with the original grant. 

When more than one person was named on the grant it will need to be revoked and a new grant obtained to the other executors with capacity or intestacies to those relatives with the equal entitlement. 

How we can help

At Taylor&Emmet we have a specialist Empty Homes team who regularly assist in navigating and dealing with the complexities which can arise in estate administration.

We act as professional deputy and attorney for client’s who lack capacity. We have also been appointed to act in the administration of estates in cases where there is no deputy or attorney appointed to act for the person entitled to administer the estate where they lack capacity. 

We act for local authorities, private organisations and individuals throughout the country, offering a comprehensive variety of solutions to assist with all matters relating to Empty Homes.

For more information contact (0114) 218 4000 or email