In our previous blogs we discussed whether professional executors are required, what the role of executor entails, and when lay executors should consider taking advice.  Having considered their obligations and the time involved in administering an estate (particularly one which is complex or difficult), it would be perfectly understandable if an executor decided that they did not wish to undertake the role.

If you do not want to deal with the estate you have several options and they all depend on where you are in the administration process, and what you want to happen ongoing.

Renunciation

If you are named as an executor in the Will and you do not want to administer the estate at all, you may renounce. Someone may wish to do this for a variety of reasons, for example if they are very elderly, unwell, do not have the time, or there are other external factors such as disputes which means it would not be appropriate for them to do the job.

You renounce as an executor by completing a deed of renunciation. This will permanently free you of the responsibility of dealing with the estate. Once you have signed this your executorship is cancelled and that cannot be reversed. Someone else will need to step in and do the job instead of you. Usually this would be another executor if another one is named in the will, or it may be one or more of the beneficiaries named in the will.

You cannot renounce if you have already started dealing with the administration process. It is therefore important to think at the outset whether you are willing or able to administer the estate. It is far more difficult once the administration process has begun to step away from your role as executor.

Reservations of power

Reservation of power for an executor only occurs where there is more than one executor named in the will and one executor does not want to take out the grant and deal with the administration, but does not want to give up the role entirely either. Often one executor will reserve power for practical reasons (such as the feeling that there are "too many cooks" and the number of executors is complicating the process). To reserve power it must be in writing and there must be at least one other executor willing to obtain a grant

If an executor has reserved power, they can later take out a grant if they feel it is appropriate to do so. This is often referred to as "double probate".

Removal by the Court

If you have already started to dealing with the estate (you have "intermeddled") but it later becomes apparent that you are unwilling or unable to administer the estate, you will usually need a Court order to confirm that you may be removed as an executor.

Where there is more than one executor and you have equally taken out the grant, if you are no longer willing to administer the estate you should not just stopped getting involved. Without a court order, you remain liable to the estate and for the actions of the other executor even if you were not involved or not aware of what was going on. If, in a worst case scenario, you obtained a grant of probate, fell out with your other executor, and decided to take a step back, and later discovered that the other executor had misappropriated money from the estate, you would be equally liable to repay that money as the other executor would.

Any application to be removed as an executor of the estate once you have intermeddled is made under section 50 of the Administration of Justice Act 1985. It may be worthwhile taking advice on such an application, as the process can be complex. It also may be the case that it is not appropriate for you to be removed as an executor (in which case the court might refuse your application). Take the above example, if you were taking a step back from the administration of the estate and wanted to be removed as an executor because you suspected that your co-executor was misappropriating funds, it is likely to be a breach of your obligations to step away and allow them to do so. What might be a more appropriate course is to have the other executor removed and liable to repay any money that they have misappropriated. If in doubt, seek some advice.

If you have any issues dealing with an estate or wish to be removed as an executor please contact Toby Walker by email or on 01494 893512.

If you wish to instruct a professional to assist you with administering an estate, please contact our Wealth Management and Taxation Team on 01494 521301.