Being appointed as the executor of someone’s estate is a very important role. An Executor is required to arrange the funeral of the deceased, obtain probate, pay the debts of the estate (from estate funds), distribute the assets to the beneficiaries and defend the estate against any claims made.
Many people accept their appointment as Executor willingly, particularly when the deceased is a close relative or friend. However, some people choose to give up their role as Executor. We most commonly see Executors choosing to give up their role due to an illness or injury they consider will prevent them from completing the estate administration in the ‘Executor’s year’. The formal term for giving up your role as Executor is called ‘renouncing probate’.
Renouncing probate is as simple as completing a court form. However, renouncing may not be so easy if you have begun to complete the estate administration before you decide to renounce, formally referred to as ‘intermeddling’ in the estate. Where a person has arguably intermeddled in an estate and wishes to renounce, the renunciation will require court approval. Depending on the level of intermeddling, the court may hold that you are beyond the point at which you can renounce probate.
In the recent case of Re Abat [2020] VSC 560, the court refused to accept the renunciation of an Executor who had already made funeral arrangements, contacted banks, accountants, and Land Registry services, closed bank accounts and share trading accounts, paid credit card debts and legal fees, opened an estate bank account and paid herself money from the estate she argued the deceased had loaned to her.
Although the Executor in that case was ordered to continue to act, the court confirmed that ‘circumstances where the court may accept the renunciation of an Executor notwithstanding that he or she has intermeddled in the estate may, for example, include where all the beneficiaries are adults, whether their legal rights are fully explained to them, their understanding of their legal rights, the consequences of the renunciation for them, whether they wish the renunciation to be accepted and the grant to be made to another person.
If you have been named as Executor and intend to renounce probate, the best practice is to renounce as soon as possible.
If you have concerns about your upcoming role as an Executor, or have just been named as an Executor and would like to renounce, please Contact Us to speak to one of our Estate Planning lawyers. We have years of experience helping people throughout the Newcastle, Lake Macquarie and Hunter region.
This blog was written by Associate,
Jessica Benson
Jessica practises in the areas of Family Law, Wills & Estate Planning,
Deceased Estates and Will disputes
