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Executors Right To Renounce

Probate solicitor, Toni Sinclair, looks at what happens when someone named as an executor in a Will doesn’t want to take on that role

We are often approached for advice by people who have been appointed as an Executor in a Will but who just do not want to act in that capacity.

Someone who has been appointed as an Executor in the Will of a deceased person is not compelled to accept the appointment if they do not wish to do so.  They have the right to renounce their executorship.  They can renounce their right to act as Executor at any time up to the issue of a Grant of Probate to them, providing they have not “intermeddled” with the Estate in such a way as to indicate their acceptance of the appointment as Executor. 

Which begs the question, what is intermeddling?

If an Executor named in a Will is thinking about not accepting their appointment or renouncing, then they must not interfere in the administration of the Estate in any material way such as to indicate their acceptance of the office of Executor, otherwise they will have intermeddled and will not be able to renounce.  Intermeddling will include, for example, receiving payment for debts due to the Deceased and giving receipts for them or disposing of the Deceased’s personal possessions. 

Certain acts will not be regarded as intermeddling, including acts of humanity or necessity such as organising the funeral, dealing with the welfare of the Deceased’s family or dependants,  feeding and making arrangements for the care of pets or securing property and carrying out urgent repairs to it.  

Once a named Executor has renounced, all their rights, responsibilities  and obligations  as an Executor will then cease and the winding up of the Deceased’s Estate will carry on as if they had never been appointed in the first place.  However the renunciation of probate by an Executor does not operate as a renunciation of any right they may have to take out a ‘Grant of Letters of Administration (with Will Annexed)’ if, for example, they are also named as a residuary beneficiary in the Will.   So if they do not want to act in any capacity in dealing with the administration, they should ensure that they also renounce their right to this kind of Grant too. 

If an Executor renounces, it does not prevent them from benefitting under the terms of the Will as a beneficiary (providing any gift to them is not conditional upon them accepting the appointment).  Nor does it prevent them from taking up the trusteeship of any Trusts contained in the Will if they have also been appointed as a Trustee of those Trusts. 

So how do you go about renouncing probate?

The renunciation must be made in writing and must be signed by the renouncing Executor, whose signature must be witnessed by a disinterested person.  Furthermore, for it to be effective the renunciation must be filed at the Probate Registry.  In most cases it will be filed with the Court at the same time as the application for the Grant of Representation is made by the person or persons who do intend to take out the Grant of Representation. 

If you require more information on renunciation or would like to have a Deed of Renunciation drawn up, please contact us on Freephone 0800 037 1130.

 

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