Ah, the chain of representation rule. Consider it a helpful shortcut in handling estate matters. It comes into play when an executor can't continue their duties, maybe due to passing away or other reasons. In these situations, instead of dealing with Court applications, costs and potential delays, the chain of representation offers a simple way to get things done, aka take care of unfinished business. (Quite literally.) It's like a quick and efficient fix for specific challenges that pop up during estate administration, and it dates back over several centuries.
What is the chain of representation and how does it work?
The ‘chain of representation’ comes into play when an executor passes away, goes missing, or is unable to fulfil their duties before completing the executorship. In such cases, if the executor has a Will, their designated successor must step in to carry out the remaining tasks. This has been codified in some states, including Victoria and Queensland.
Section 17(1) of the Administration and Probate Act 1958 states that ‘so long as the chain of representation is not broken, the last executor in the chain is the executor of every preceding testator.’ So, for example, when this takes place in Victoria, if the executor leaves a Will appointing an executor for their own estate, that person will then become the executor of the original estate as well as the second estate.
When is the chain considered broken?
Under the Act, the chain of representation is considered broken according to the following three scenarios:
- If the executor dies intestate (without a Will).
- If the executor did leave a Will, but did not appoint an executor in it.
- If the second executor does not obtain a grant of probate in respect of the deceased’s executor’s Will.
There are other circumstances in which the chain of representation may be broken, for example, when an executor seeks to remove or renounce their role as executor of the deceased’s executor’s Will.
Can the chain be repaired once broken?
If the chain of representation is broken, and any part of the original testator’s estate remains unadministered, the Court can appoint a substitute administrator called “administrator de bonis non (which is Latin for “of goods not administered”.) This happens when the original executor or administrator is unable to finish their duties.
The substitute administrator has the authority to handle the remaining tasks in the estate (similar to the initially appointed individual). However, it’s important to note that the Court cannot appoint a substitute administrator if there’s nothing left to take care of in the estate.
What if the chain is an unwelcome surprise?
If the unexpected chain of representation appointment catches you totally off guard, don't worry – you're not obligated to step in. But, note that if you want to avoid being the executor of the deceased person’s estate, you would have to formally renounce the role.
Understanding the chain of representation can be a bit perplexing, but essentially, it means that if an executor passes away or is unable to fulfil their duties, their chosen successor, as outlined in their Will, will be called upon to step in (however, the role is not compulsory and is able to be renounced). In cases where there is no Will, navigating the situation may become a bit intricate, but there are established rules to address such scenarios.
If you find yourself tasked with taking over an estate as an executor and are seeking legal guidance, reach out to our clever Willed team today. We specialise in various aspects of the end-of-life planning and care process, including Wills, Probate, Letters of Administration, Cremations and Prepaid Funerals.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.