Farra is a death administration assistant for UK families. Get step-by-step guidance for registering a death, applying for probate, notifying banks, and managing bereavement admin. From essential documents to practical checklists, Farra simplifies estate paperwork and funeral-related tasks so you can focus on what matters.
An executor without mental capacity cannot legally act. Before probate: co-executors proceed alone. After probate: a court application under the Administration of Justice Act 1985 or Court of Protection appointment of a deputy is needed. Take legal advice promptly.
Have more questions on UK death administration? Let Farra help.
The Mental Capacity Act 2005 establishes a two-stage test for mental capacity. First, is there an impairment of, or disturbance in the functioning of, the mind or brain? Second, does that impairment or disturbance cause the person to be unable to make a specific decision?
A person is unable to make a decision if they cannot understand the relevant information, retain it long enough to make a decision, use or weigh that information as part of the decision-making process, or communicate their decision.
Critically, the Act presumes capacity unless the contrary is established. Capacity is also decision-specific: an executor may lack capacity to deal with a complex investment portfolio but retain capacity to sign a straightforward form. Assessment should be made for each specific act of administration.
Common causes of incapacity in this context include dementia, acquired brain injury, severe mental illness, and the effects of medication. Where capacity is borderline or fluctuating, a formal capacity assessment by a qualified medical professional is advisable before concluding that an executor cannot act.
Where the incapacitated executor has not yet applied for probate (or has applied but the grant has not yet issued), the following options are available:
If the will names other executors who have capacity, they may apply for probate without the incapacitated executor. Power is reserved to the incapacitated executor — meaning their appointment is preserved and they may later apply if capacity is regained. This is generally the simplest approach. See our guide on power reserved.
If a Court of Protection deputy has been appointed for the incapacitated executor, that deputy may be able to renounce executorship on their behalf, or to apply for probate alongside the other executors. The scope of the deputy's authority depends on the terms of their appointment. Legal advice is needed to confirm whether this is possible.
Where the incapacitated executor had previously made a Lasting Power of Attorney for property and financial affairs, and that LPA is registered with the Office of the Public Guardian, the attorney under the LPA may be able to act in relation to executorship. Again, the scope depends on the LPA's terms — legal advice is strongly recommended before proceeding.
If an executor loses capacity after a Grant of Probate has been issued, the situation is more complex. The grant names them as executor and they theoretically have legal authority — but they cannot lawfully exercise it.
In this situation, the options include:
This is the most direct route. Section 50 gives the court a broad power to appoint a substitute personal representative in place of an existing one. The applicant (typically a co-executor or beneficiary) must demonstrate that the incapacitated executor is unable to act. Medical evidence will usually be required. Court fees and legal costs apply — typically £3,000 to £8,000 for solicitor fees plus court fees from £355.
Where there are co-executors who retain capacity, they may in practice be able to continue administering the estate without formal intervention — provided no acts require the incapacitated executor's specific agreement or signature. However, this depends on the circumstances and any institutional requirements (some banks require all named executors to authorise transactions). Legal advice is advisable before taking this approach.
The Court of Protection can appoint a deputy to manage the incapacitated executor's affairs. That deputy may then take over the executor's role in the estate administration, subject to the terms of their appointment. Applications to the Court of Protection typically take several months and involve legal and court fees.
If an executor who lacks capacity purports to act — for example, by signing a document, transferring assets, or instructing a solicitor — those acts may be void or voidable. This can create significant complications: transactions may need to be unwound, and third parties who have acted in reliance may have claims against the estate or the individuals involved.
The executor's personal liability also remains relevant. If the estate suffers loss because of an act done without authority, the executor or those advising them may be required to make good the loss.
For these reasons, where there is any doubt about an executor's capacity, the safest course is to pause and take professional advice before proceeding with any act of administration.
If you need help navigating a complex executor situation, Farra can help you understand your next steps.
How to formally renounce the executor role. Form PA15, the point of no return, what happens when all executors renounce, and power reserved.
When to use a solicitor for estate administration. Simple DIY estates vs complex ones, typical solicitor fees, and the grant-only service option.
What actions executors can legally take before the Grant of Probate. Arranging the funeral, notifying organisations, and what cannot be done without a grant.
Named as executor in a will? Learn your first 10 steps: registering the death, locating the will, valuing the estate, and applying for probate. UK 2026 guide.
Can't find the will? Search the National Wills Register, solicitors, banks, and estate of the deceased. What to do if no will is found. UK executor guide 2026.
Your AI companion for UK death administration—combining practical guidance with emotional support, available 24/7.
Your AI companion for UK death administration
Free to start • £129 for full access • 30-day guarantee