Can I refuse to act as an Executor?

If you have been appointed as an executor in a deceased person’s Will, you may be wondering what exactly the role involves. You may also be wondering what you can do if you are named as an executor but do not want to act as one.

What is the role of an executor?

An executor is a person appointed in a Will to administer the deceased’s estate in accordance with their Will. This may involve a number of tasks, including:

  • closing accounts and collecting all of the deceased’s assets;
  • paying all of the deceased’s debts;
  • completing any tax returns (if required); and
  • distributing the assets to the beneficiaries named inthe Will.

You may be required to apply for a Grant of Probate before you can complete any of the above tasks. For more information about whether a Grant of Probate is needed, see our recent article What is Probate?

Do I have to accept my appointment as executor?

Even if you are named as an executor in the Will, there is no legal obligation on you to take on the role. You can choose not to act as an executor by one of two options.

1) Leave reserved

If there is another executor appointed in the Will, and they are willing to act as executor, then they can apply for a Grant of Probate with “leave reserved” to you. This means that you are allowing the other executor to administer the estate, however, you are reserving the right to be joined as an executor at a later date if you so wish.

This option does not require you to complete any paperwork, nor do you need to find a replacement to act in your place. However, it does require that there be at least one other executor appointed in the Will who is willing to act.

2) Renouncing probate

Alternatively, you may “renounce probate”. This means that you are giving up your right to act as an executor of the deceased estate. After you renounce probate, you cannot be reinstated as an executor, unless you obtain the consent of the Court first.  

If there are no other executors appointed in the Will, then you will have to renounce probate. Even if there are other executors willing to act, you may still choose to renounce probate rather than having leave reserved if this is your preference.

If you intend to renounce probate, you must do so as early as possible for several reasons:

  1. When renouncing probate, you must confirm that you have not intermeddled in the estate or undertaken any activities as executor. Once you take any steps that could be perceived as undertaking your role as executor, you can no longer renounce probate, unless you obtain permission from the Court first.  
  2. If you are appointed as the sole executor in the Will, the estate cannot be administered by a replacement executor until you renounce probate, or you are removed as executor by the Court.

To renounce probate, you will need to sign a ‘Renunciation of Probate’ form in the presence of a lawyer who will also complete an ‘Affidavit of Verification’ form. This must then be filed with the Supreme Court of Victoria (‘the Court’).  

If the Will appoints one or more other executors as well as you, then the remaining executor(s) will apply for a Grant of Probate and administer the estate once you have renounced probate. In this instance, you do not need to find a replacement.

If the Will appoints you as the sole executor, then someone else, known as an ‘administrator’, must be found to act in your place. Typically, this would be the beneficiary or beneficiaries with the greatest entitlement from the deceased’s estate. Otherwise, the Court may appoint a trustee company, such as State Trustees, if no one can be found to act as administrator. The replacement administrator would then apply for a Grant of Letters of Administration with the Will Annexed.

How can Sharrock Pitman Legal help?

Our team of Accredited Specialists in Wills & Estates Law can assist you by advising on the role of executor and can make the role easier by assisting you in administering the estate.

We can also assist you in the process of renouncing probate. Please feel free to contact us on 1300 205 506 or by email at sp@sharrockpitmanb.com.au.

We look forward to being of service.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

 Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Melinda Van Rooyen

Melinda Van Rooyen is a lawyer in our Wills & Estates team. Melinda can be contacted on (03) 8561 3311 or email melinda@sharrockpitman.com.au.

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