If you have been appointed as executor in a Will and you don’t want to do it, then you are not obliged to do so.
You can abandon your right to act by signing a form of ‘renunciation’ at the outset. This allows you to relinquish your title to the Grant of Probate.
But you can only renounce probate if you haven’t intermeddled in the deceased’s estate. So if you are unsure whether you want to take on the role, you must not interfere in the affairs of the estate until you have decided to proceed.
If you have interfered with the estate, then you cannot renounce your role as executor and you risk liability arising from any improper administration of the estate.
The renunciation must be absolute.
It takes effect once the renunciation document has been signed, but you can withdraw it before it has been lodged with the Probate Registry.
Once it has been lodged with the Registry, you can only retract it with the leave of a District Judge or Registrar.
It can be drafted by a solicitor or a probate professional.
The renunciation document doesn’t confer the right to a Grant of Probate on another person.
If the next of kin has agreed to step in and apply for the Grant of Probate, then they can lodge the renunciation document at the same time.
If other executors have been named in the Will, the remaining executor (or executors) can apply for probate, provided that the Will doesn’t expressly require a certain number of executors.
If you are the only executor appointed in the Will and no alternate executor has been mentioned, then an application must be made to the court to appoint an administrator.
When someone dies without a Will, they are said to die ‘intestate’ and an administrator is appointed to administer their estate. The rules of intestacy determine who will act as administrator.
If there is just one person entitled (e.g. spouse, or sole surviving child), they may renounce their role as administrator. When they do so, the right to act falls to the next in line.
If there is more than one person entitled (e.g. three children), then they don’t need to renounce their role, as the child who wishes to act simply does so, and the others don’t need to formally state that they are not involved.
If you have been appointed as an executor in a Will (but not as an administrator without a Will), you can unofficially leave the role of the day-to-day running of the probate process to the other executor(s) under the option ‘power reserved’.
This leaves you with the option of being able to step in at a later date, if the other executor(s) become ill or cannot continue with the process.
An executor with power reserved doesn’t sign the forms or attend the Probate Registry.
This option may be appropriate if you are one of three executors who are, for example, children of the deceased and only one of you deals with the deceased’s estate as one sibling lives closer to the parent who has died. The other two can then have power reserved.
If you are dealing with the probate process yourself, then the Probate Registry will deal with this for you, based on the information you provide on the Probate Application (PA1) form.
If a solicitor or other probate professional is involved, they will draft the appropriate document, known as a “notice to a non-proving executor”.
Published on: September 19, 2012