Executor reserving power meaning

When an executor reserves power, it means that a named executor in a will chooses not to take an active role in administering the estate at the time the grant of probate is applied for, but retains the right to step in and act at a later stage if they wish.

How it works in practice:

A will may name more than one executor. When the time comes to apply for a grant of probate, not all named executors need to apply together. One or more executors can apply for the grant while another executor "reserves power" to prove the will at a future date. The executor who reserves power does not renounce their role permanently. They simply stand aside for the time being.

The legal basis for this is found in Rule 27 of the Non-Contentious Probate Rules 1987. The grant of probate is issued to the applying executor or executors, with a note that power is reserved to the non-applying executor. This is sometimes referred to as "power reserved" or the executor having "leave reserved."

Key points to understand:

1. The reserving executor has not renounced. Renunciation is a separate and usually permanent step. Reserving power keeps the door open.

2. The reserving executor can later apply to the Probate Registry to be joined to the grant if circumstances change, for example if the acting executor dies, loses capacity, or if a dispute arises.

3. The acting executor or executors can proceed with the full administration of the estate without the reserving executor's involvement, unless and until the reserving executor chooses to step in.

4. Notice of the application for the grant must normally be given to the executor who is reserving power, so that they are aware of what is happening and have the opportunity to act if they wish.

Why might an executor reserve power:

There are several common reasons. The executor may live abroad and find it impractical to act at that stage. They may be unwell or simply prefer not to be involved unless a problem arises. Sometimes executors reserve power as a practical convenience where, for example, one executor is better placed to deal with the estate's affairs and the others are content to step back.

Distinction from renunciation:

This is an important distinction. If an executor formally renounces probate, they give up their right to act and generally cannot later change their mind without the court's permission. Reserving power is a much softer step. It preserves flexibility and is often the sensible choice where an executor does not want to be actively involved but does not want to give up their rights entirely.

If you are dealing with an estate where this has arisen, the practical question is usually whether the reserving executor's involvement is needed or likely to be needed. In straightforward estates with cooperating executors, it rarely causes any difficulty. It can become more significant where disputes arise or where the acting executor is not fulfilling their duties properly, because the reserving executor can then step in as a safeguard.