The role of an Executor of a legal Will can be time-consuming and difficult during an already emotional time. However, you are not under any legal obligation to fulfil this role and can ‘renounce’ or ‘resign’ from being an Executor (aka. Executive of Will duties)
Can I resign as an Executor?
Yes, you can resign as an Executor (even if you have previously agreed with the Willmaker that you would undertake the role) as long as you have not undertaken any actions that could be understood to be ‘managing the estate’.
But, it is not as simple as just resigning from the role and telling someone. There are a number of steps to take before renouncing your role as Executor.
How do I renounce my role as Executor?
If you wish to resign from your role as Executor, you will generally need to fill out a ‘Renunciation of Probate’ form with the relevant state or territory Court. By completing this process, you confirm to the Court that you do not wish to be the Executor of the Will and therefore renounce any rights or powers granted to you by the Will and that you have not meddled in the deceased’s estate.
Some individuals may seek a lawyer or probate service's assistance to assist with this process to lessen the administrative burden of the application form.
Who becomes the Executor?
If you resign from your role as Executor, generally, another Executor will be appointed. If more than one Executor is named in the deceased’s Will or a backup Executor, then the responsibility will fall to them.
Alternatively, if you have been named as a sole Executor, a suitable replacement will need to be found. This could be suggested by the renouncing Executor, such as a family member or trusted friend or advisor. If no other suitable replacement exists, the Court may appoint an Executor following the rules of Intestacy or a public trustee or similar service may be engaged to manage the estate. As these legal matters are handled at a state level, the legislation may be different for each state or territory Court and is regularly updated, so it is best to check before starting your renunciation process.
Whilst you have no legal responsibility to be an Executor of a Will, it may be useful to seek legal advice when renouncing the title to ensure that no issues or complications occur.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.