It might be your worst nightmare after a death of a loved one; the Will is retrieved from the solicitor’s office, and you find out for the first time that you were named executor in your loved one’s Will.
There are a variety of reasons why you may not want to act as executor and take out a grant of probate - you might still be grieving, you might have too many personal commitments already, or you might not be receiving any benefit from the estate and do not want the burden.
I don’t want to administer the estate
A named executor in the Will has freedom to decide whether or not to accept their appointment as executor, unless they have intermeddled in the Estate. Declining to be executor is called “renouncing” your position of executor of the Estate. You can refuse even if you told the deceased in their lifetime that you were prepared to accept the role.
To properly renounce, the executor must sign a renunciation of probate, which is a document that is filed with the Court. The renunciation must be in an appropriate form for the Court.
A renunciation is not valid until it is accepted by the Court, and it is capable of being withdrawn at any time until it is accepted by the Court.
What is intermeddling?
An executor named in a Will can choose to accept or refuse the appointment but cannot refuse once they have carried out acts which amount to their acceptance of office. This is referred to as ‘intermeddling’.
If an executor intermeddles, then attempts to renounce, the renunciation will be invalid.
There is no exhaustive list of acts that might constitute intermeddling, but they might include:
- Calling in bank accounts;
- Dealing with estate assets;
- Dealing with debts of the deceased;
- Acknowledging their executorship.
Intermeddling likely does not include acts of necessity which might include:
- Advertising or applying for a grant of probate;
- Arranging the funeral and paying the funeral from estate funds;
- Securing the deceased’s property;
- Maintaining the deceased’s pets or livestock.
What if I don’t renounce but also don’t take any steps to administer the estate?
A party with an interest in an estate may bring an application pursuant to Section 15 of the Administration and Probate Act 1958 compelling you to bring the Will into Court and explain why you are neither proving the Will or renouncing. The Court may make an order to appoint someone else to administer the estate. You could be responsible for the costs of the application.
Do I need advice?
The effect of renunciation should be explained to you by a solicitor and an affidavit verifying the renunciation should be signed by the solicitor.
In addition, there may be issues arising from your renunciation including:
- possibly losing entitlements in the Will, which may be conditional on you acting as executor (even if it isn’t stated that such a condition exists);
- losing the right to apply for or receive executor’s commission for your pain and troubles in administering the estate.
