What to do if you are named an executor but do not wish to act
If you are appointed as an executor under a will in England and Wales, you are responsible for administering the deceased’s estate. This typically includes identifying and securing assets, paying any outstanding debts and taxes, and distributing the estate to the beneficiaries in accordance with the will.
What some may not realise, is that you initially have a choice as to whether you wish to take up the position of executor. There may also be circumstances where you are unable to fulfil the role, and you will want to take steps to formalise your decision early in the administration of the estate before assets are dealt with.
Generally, the two options available for you are either renunciation or having power reserved.
What is Renunciation?
If you decide to give up your rights to act as an executor in the estate completely and absolutely, you may decide to renounce your role (renunciation). This is a permanent decision, meaning you cannot change your mind (except in very limited circumstances and with leave of the court) and you must ensure you have not intermeddled with the estate, or otherwise become involved in any part of the administration that an executor would normally do.
To renounce your role as executor, you must file the required document with the probate registry. This is normally done at the time of the application, although the document is normally completed at the outset of the administration so that alternative executors can take up the role.
Renunciation gives clarity and finality that you are not taking up the role. This is helpful where you may have concerns over the administration, will or estate generally, or where you are simply not able to take up the role due to illness or some other reason. The disadvantage is that it is permanent so careful consideration must be given as to whether this is the correct path for you.
What is Power Reserved?
If you would prefer to take a back seat but not completely give up your right to probate, you can have power reserved to you. This enables you to step back from day-to-day executor duties without permanently giving up the role. This option is only available where there is more than one executor appointed under the will and at least one of these agrees to take up their role.
This gives you the ability to revive your role as executor in the estate by applying for double probate. Alternatively, you may later decide to renounce altogether.
Having power reserved provides flexibility and you can choose to become involved in the administration at a later date. It’s very useful where you may be temporarily unavailable with other commitments.
The main disadvantage to this option is that there needs to be at least one other executor able and willing to act. Due to its flexibility, it can also create uncertainty in estate administration.
Procedurally, to have power reserved, the acting executors must file a specified notice to the executor to whom power is to be reserved. Again, this is normally at the outset of the administration and before the application for probate to enable clarity for those acting.
The position differs where there is no Will and this would require careful consideration of the circumstances and requirements involved.
Early Decision Making is Key
A key point in both options is to ensure that the decision is made early on and before becoming involved in the administration. This can help provide clarity and avoid future complications.
How can GA Solicitors help?
GA Solicitors in Plymouth has an established wills, trusts and probate department with years of experience in dealing with all kinds of probate and executor matters. Ranked in The Legal 500 and Chambers High Net Worth, you can be assured you are in the best possible hands.
Call the team today on 01752 203500 or email me directly via michelle.crump@GAsolicitors.com and we will be pleased to help.
If you have concerns about an executor or how an estate is being handled, you can also speak with our dedicated contentious probate team who can offer clear advice.
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