NSW Second Executor or Guardian?

Discussion in 'Wills and Estate Planning Law Forum' started by Julianne, 3 June 2018.

  1. Julianne

    Julianne Member

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    A person acting as the executor of an estate has been rendered incapable by severe illness. Her family has sought to gain formal guardianship in order to act on behalf of the executor in matters related to her own care. In the will a second executor is named, to be appointed in the event of the death of the executor now taken ill. Who has authority to continue as executor? The newly appointed guardian or the second executor named in the will? Thanks very much.
     
  2. AdValorem

    AdValorem Well-Known Member

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    Hi Julianne
    There is a difference between a guardian and an attorney.
    The guardian is certainly not authorised to act as executor.
    If the executor had mental capacity they could have appointed an attorney to act in their stead.
    Considering the deceased appoint a backup executor they wished for that second person to act if the first executor couldn't act and not the attorney of the first executor.
    The second executor may apply for probate.
    Regards
    Val
     
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