The role of an Executor is to take on the legal responsibility to deal with the administration of the estate of the deceased. This is a wide-reaching role with several legal duties and responsibilities to fulfil, which can continue beyond the administration period.
The duties of an Executor include but are not limited to identifying and valuing all assets in the estate, identifying all liabilities of the estate, calculating and paying from the estate funds any Inheritance Tax and any other taxes due, applying for a Grant of Probate, collecting in/selling assets, discharging liabilities/debts, preparing estate accounts (to account to the beneficiaries) and distributing the estate assets in accordance with the terms of the Will.
Executors are often unaware that they could be held personally and financially responsible for errors in administering an estate, even if those errors were genuinely made.
What if you are named as an Executor in somebody’s Will and you cannot or do not want to act? Perhaps you feel it would be too traumatic. Perhaps you don’t live close to the deceased, which would make the administration difficult. Perhaps you simply don’t have time.
You do not have to act as an Executor if you do not want to and, there are two options available.
Can I renounce my role as Executor of a Will?
The first option is to permanently disclaim your legal right to administer the estate by renouncing your executorship. This is known as renunciation. To formally renounce you should execute a document called a Deed of Renunciation. This needs to be duly signed by the renouncing Executor and witnessed. A solicitor will be able to prepare the necessary documentation for you.
For an Executor to have the option to renounce they must not have “intermeddled” in the estate, in other words they must not have interfered in any way with the estate for example by moving possessions, valuing assets, closing bank accounts etc. If an Executor has in any way intermeddled, they are not able to renounce.
What is a Deed of Renunciation?
A deed of renunciation is a legal document for people who have been assigned as the executor of a Will and who feel that they are unable to complete the duties expected of them. This could be due to an inability to complete the duties expected of them or feeling like they cannot cope with the stress (emotional or otherwise) of undertaking such a task.
What is Power Reserved in Probate?
The second option if an Executor does not want to be involved in the administration of an estate and act as an Executor is to have “power reserved.” This allows an Executor to take a step back from the estate administration but reserve the power to become involved at a later stage should they need or wish to.
There is no formal documentation that the Executor to whom power is reserved would have to sign. However, the remaining Executor/s acting should provide a written notice to the Executor to whom power is reserved when the application for the Grant of Probate is made to the Probate Registry, notifying them that they are applying for the Grant in their name/s only.
Who administers the estate if an Executor does not want to act?
If there are remaining Executors named in the Will, they would deal with the administration of the estate. The Will might name a substitute Executor intended to act if the primary Executor/s are unable or unwilling to act. If there are no remaining Executors named in the Will, the beneficiaries of the estate have the authority to apply for the Grant and deal with the administration of the estate.
What if an Executor does not have mental capacity?
A medical certificate confirming the Executor’s lack of capacity will need to be obtained.
If there are no other Executors and no substitute Executors named in the Will, then a Deputy appointed by the Court of Protection or someone who has been appointed as an Attorney under a Power or Attorney to manage the affairs of the mentally impaired Executor can apply for the Grant of Probate and deal with the administration of the deceased’s estate.
Some people choose to appoint solicitors as professional Executors to administer their estate which has many advantages including assurance and certainty that all aspects of the estate administration will be dealt with correctly and unbiased and impartial administration of the estate.
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About the Author
Joanne joined Thornton Jones Solicitors in May 2022, bringing a wealth of experience to our Private Client department.
Since qualifying as a Solicitor in 2009 Joanne has worked in the private client sector and has become a specialist in many areas of non-contentious private client work, particularly Wills, Estate Administration, Lasting Powers of Attorney, and Court of Protection applications.
After leaving her hometown to study at University and Law School in Surrey, Joanne returned to her roots here in Yorkshire to settle down and loves being able to work within the local community and helping local people.
There are never two days the same in the life of a private client lawyer and I enjoy the variety of work. I enjoy helping people from all walks-of-life deal with a variety of legal matters, often during extremely emotionally challenging times.
At home Joanne is kept more than busy with her daughter, her dog and her tripod cat. Any free time she has, she enjoys long walks with the dog, socialising with friends and family, dreaming of holidays in the sun and being an Alzheimer’s Society Dementia Friend.
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