Probate – What if I don’t want to be Executor of a Will?
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Being appointed an executor in a will does not mean that you are obliged to take the appointment.
So, you’ve been appointed an executor in a will, and the testator (the person that made the will) has died. Do you have to take the appointment? No. But beware, if you get involved in the probate process you may then be obliged to continue (called ‘intermeddling’).
Here, we look at how, and when you can resign, as well as explaining when it is too late – and you have to continue with the role.
What does an executor have to do?
Whether you want to take on the role of executor perhaps starts with this question – what will you have to do?
As well as the time and effort needed to deal with the administration of someone’s estate, do also bear in mind that executors are personally liable. Get it wrong, and you carry a personal responsibility to put it right!
Before probate itself gets underway, there will be immediate things to deal with such as:
- informing family members and friends
- registering the death
- arranging the funeral
- securing property – making sure their home is secure (and insured)
The actual administration of the estate tends to wait until after the funeral is over. This will include some or all of:
- notifying people such as clubs, subscriptions, DVLA
- ‘establish the estate’ – ie get date of death values for all assets and liabilities
- IHT – submit a full return to HMRC if IHT is due (and make the initial payment)
- Probate – apply to the court for the ‘grant of probate’
- realise assets – with probate in, close all bank accounts etc
- pay liabilities – with cash released, pay all bills
- house – clear of all contents and sell it
- pay cash legacies – if there are any to pay
- income tax – settle income tax to date of death and for the period of administration
- HMRC clearance – obtain clearance for both income and inheritance tax
- Estate accounts – produce draft estate accounts for the residuary beneficiaries
- pay residuary estate – make final payment of the balance of the estate to the residuary beneficiaries
What are the ‘types’ of resignation?
In simple terms there are essentially 3 types of ‘resignation’ as executor:
- power reserved
The heading ‘circumstance’ is not so much a chosen resignation, more a situation where the role of executor can not be taken on when required – for example if the appointed executor has lost capacity since the will was made. If not therefore a resignation, noteworthy nonetheless.
Another way your appointed lay executors can relieve themselves of the day to day burden of being an executor is to take the grant of probate, but appoint a specialist probate solicitor to do all of the day to day leg work for them.
What is Power Reserved?
For once, power reserved is a legal phrase that actually says just what it is! So, where a will has appointed more than one executor, the grant of probate can be taken out in one or more of the names of the appointed executors, with ‘power reserved’ to other(s).
An example of where this might be used is where the children of a deceased are appointed, but one of more might struggle to be involved in the day to day administration of the estate due to personal commitments, or perhaps they live abroad.
Power reserved is not a total ‘resignation’, and can be used later down the line if needed.
Executors are personally liable for mistakes they make.
How does an Executor Renounce Probate?
Renouncing probate means cancelling the appointment altogether. It is a ‘final’ decision in that once they have renounced, that’s that and they will then have no authority to deal with the estate.
An executor renounces probate by completing a simple ‘deed of renunciation’ which the ‘proving executors’ (those that are going to take the grant) submit with the probate application.
It is important however that a potential executor has not ‘intermeddled’ with the estate as this removes the option to renounce.
What does intermeddle mean (Executor)?
An executor is deemed to have intermeddled if they have dealt with a substantive aspect of the early administration of the estate. It is a slightly grey area, and one therefore to subjective opinion.
In short, if an appointed executor has intermeddled before probate has been granted, they can not then renounce probate. They can still have power reserved (see above).
To be deemed to have intermeddled it would need an ‘executor’ to have taken positive steps to have administered an estate – eg to give a bank an instruction to pay a closing balance somewhere.
The significance of intermeddling surrounds the notion of personal liability (as mentioned at the outset). If you have intermeddled, then you have assumed that personal liability to see the administration of the estate through.
Can I relieve family and friends of the burden of being Executor?
When you think that selling a house is considered one of the most stressful things, along side bereavement, it is perhaps a little odd that we should bestow upon our loved ones not only selling our house, but to deal with everything else for us to whilst they deal with the grief of bereavement! But, it seems almost the expected thing here in the UK.
As an expert estate planning solicitor with decades of experience, I don’t quite get it. And I for one have no intention of burdening my own family with that responsibility. There are many reasons to carefully chose a professional executor. We happily instruct an estate agent to market the house, and a funeral director to deal with the funeral. Why not have a legal practitioner deal with the legal stuff?
Read more here in our article Top 5 reasons to use a solicitor for Probate
Estate Administration Solicitors
We hope you have found this guide helpful. If you are an executor and you are contemplating whether to take on an estate, do please remember that this guide is just that (a guide) and is not intended to be specific legal advice. However, our team of expert probate solicitors are here to help with anything from ad hoc queries, right through to dealing with the administration of the estate on your behalf! So do reach out by leaving a comment below, calling, or emailing us.
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