Anna Sutcliffe, solicitor at Wright Hassall LLP, outlines an executor’s duties, and why (and how) someone may choose to renounce the role.
What is an executor?
When you make a will, one of the most important considerations is who you will appoint to administer your estate when you die (your executor or executors). This is not a decision to be taken lightly.
It’s sensible to appoint more than one executor (up to a maximum of four), in case any of those appointed predecease you, or are unwilling or unable to assume the role. It’s also prudent to seek the agreement of the persons appointed, so that you can rest assured that they are prepared and willing to accept the role.
Acting as an executor is a responsible and potentially onerous task. The persons appointed will need to be honest, reliable, organised, and comfortable when dealing with financial matters. It’s also advisable to choose at least one person younger than yourself, in the likelihood that they will not predecease you.
What does the role of an executor entail?
The executor’s duties are defined by what is known as the executor’s oath. This is set out within Section 25 of the Administration of Estates Act 1925, and confirms that the executor is to:
- Collect and get in the real and personal estate of the deceased, and administer it according to law.
- When required to do so by the court, exhibit on oath in the court a full inventory of the estate, and when so required, render an account of the administration of the estate to the court.
- When required to do so by the high court, deliver up the grant of probate or administration.
When you pass away, your property immediately vests in your executors. However, executors should generally not act until a grant of probate has been obtained, as this is when their authority to act becomes official.
Usually, a grant of probate will be needed when the value of the estate (after paying the funeral account) is over £5,000. In any event, many banks and building societies have their own discretionary limit as to when they require a grant of probate, and in most circumstances, it will be necessary and prudent to extract a grant.
Practically, the duties of an executor include:
- checking and understanding the will
- making funeral arrangements
- completing an application for a grant of probate
- arranging immediate funds for survivors
- preparing a complete list of the deceased’s assets and liabilities, as well as their value, at time of death
- arranging appropriate insurance
- advertising for creditors in a local newspaper and The Gazette
- paying inheritance, income and capital gains tax
- collecting in assets
- paying liabilities and expenses
- paying legacies
- distributing the residuary estate
- preparing an estate account
Why would a named executor renounce their role?
If you have been appointed as an executor, you do not have to accept the position. Some common reasons for people renouncing probate are:
- the estate is insolvent
- they do not have sufficient time to accept the role
- they were not informed of the appointment (this is why it’s wise to talk to your potential executors, though even if someone agrees in your lifetime to accept the office, they may later renounce)
- they do not accept that the will is valid and seek to challenge it; in this scenario, they become incapable of carrying out their duties
How can I renounce my executor role?
Anyone named as an executor in a will may abandon the role by signing a renunciation witnessed by a disinterested witness, ie the witness must not be mentioned in the will, and should not be a family member.
It is only possible to renounce if you have not intermeddled in the deceased’s estate. Intermeddling is carrying out the sort of tasks that an executor may do, such as letting a bank know of the death. If there are two executors, and one is given a specific legacy, and takes possession of that legacy without consent of the co-executor, this will amount to an act of administration. This is why it is important if you do not wish to extract a grant not to take any steps in relation to the estate. It should be noted that arranging a funeral is not intermeddling.
A renunciation must be absolute, and will take effect from the time that it is signed; though it remains possible to withdraw it at any time prior to it being lodged at the probate registry. Once it has been lodged (together with the original will, or if this is not available, a verified copy), it can only be retracted with the permission of a district judge or registrar.
The renunciation does not confer the right to a grant of probate on another person. If other executors have been named in the will, the remaining executors can apply for probate (as long as the will does not specify a particular number of executors). If only one executor was named and is renouncing, an application will need to be made to the court to appoint an administrator. Most renunciations are made at the same time as an application for a grant by someone else.
What if an executor is refusing to progress matters?
Unless an executor has intermeddled, they cannot be compelled to accept the role. However, they can be forced to decide if they will accept the role or not. The high court has the power to summon a person named as executor to prove or renounce probate of the will. The procedure involves a citation being issued by a person who would be entitled to the grant if the person cited renounced. If the person cited does not respond by entering an appearance, or chooses to renounce, their rights as executors are extinguished.
If an executor has intermeddled, six months has passed since the death, and a grant has not been taken, a citation may be issued, forcing the executor to demonstrate why they should not be ordered to take a grant. If the executor fails to enter an appearance, or to apply for a grant, the citer may seek an order compelling the executor to take the grant. If the executor continues to fail to cooperate, they will be liable to committal to prison.
It is possible for the person citing the intermeddler to ask for a grant to either themselves or some other person. Alternatively, an application could be made to pass over the intermeddling executor’s prior right, under Section 116 of the Senior Courts Act 1981.
In summary, secure your executors (as far as is possible)
When preparing a will, it is sensible to discuss with your proposed executors if they are comfortable accepting the responsibility. While there is no guarantee that they will not chose to renounce when you pass away, it is far more likely that they will not do so if you have spoken with them directly.
… and act swiftly, if you wish to renounce
If you have been appointed as an executor and do not wish to accept the role, you should make that decision quickly, ensure that you do not take any steps in the estate administration, and lodge the required renunciation without delay. If there are other named executors, you should discuss this with them, so that the renunciation can be lodged at the same time as their application for probate is made.
About the author
Anna Sutcliffe is a solicitor at Wright Hassall LLP. She offers specialist advice about inheritance disputes, including claims under the Inheritance (Provision for Family and Dependants) Act 1975, disputes between executors, and claims in respect of the validity of wills.