As much as we try to encourage testators to speak with the people they wish to appoint as executors to inform them of their choice, some people will one day find themselves surprised with the role. Many of these people will have this responsibility placed on them at a time where they are grieving the loss of a loved one. It is also likely to be the first time they have ever acted as an executor and the road ahead may look daunting. If you find yourself in this situation and don’t want to act then there are a couple of options available to you.
One option is to keep on the role as executor but appoint a specialist as your attorney to apply for probate for you or assist you with the probate process. This will often be a solicitor or accountant, or the professional who drafted the will if they offer this service. Note that this will incur fees that will be payable out of the estate.
According to research carried out by the Office of Tax Simplification last year only 11% of respondents who did not use an adviser to assist with probate stated that they found the process simple and user friendly. 38% of respondents who did not use an adviser stated that they spent 50 hours or more on estate administration. It goes to show then that using a professional advisor to assist with probate will take a huge burden off of you.
The other option is to renounce. An executor who doesn’t wish to act is not forced to. As long as you have not ‘intermeddled’ in the estate you can formally step down. Intermeddling is carrying out any duties that an executor would usually perform to administer the estate, such as settling debts and selling assets. Don’t worry if you have already taken steps to collect in assets for protection or arranging the deceased’s funeral though. While these tasks are an executor’s duty they are not considered intermeddling.
The renunciation must be made in writing and lodged with the Probate Registry and must be carried out before the Grant of Probate is granted. It must be signed by you and witnessed by a disinterested witness; this is a person who does not stand to benefit from the deceased’s will. As this is a legal deed this should be drafted by a professional.
If there are other executors appointed then they may carry on acting and apply for probate. If you were the only executor then someone who is entitled to act will need to make an application to the court to be appointed as an administrator.
If you find yourself thrust into the role of an executor and for one reason or another you aren’t willing to act then it’s important that you act quickly, especially if you wish to renounce.