Can an Executor Renounce Their Appointment? (Qld)

In Queensland, the person who administers a deceased’s estate is known as an executor. In their will, a testator nominates someone (or several people) they trust, such as family member or friend, to act as their executor/s. While this is a significant honour, it is a time-consuming and sometimes onerous duty that not everyone feels able to accept. When an executor is unable or unwilling to fulfil the role, they can renounce their appointment. This article looks at how an executor can renounce their appointment, and the implications of this decision.

What is an executor?

An executor is a person or organisation appointed by a testator to manage and distribute their estate according to the terms outlined in their will. The responsibilities of an executor can be many and various, but in most cases, it involves applying for probate, gathering and valuing the deceased’s assets, paying off outstanding debts and giving out the remaining assets to the specified beneficiaries. Executors are under a ‘fiduciary duty’, which means that they must always act in the best interests of the estate and its beneficiaries, while adhering to the legal obligations of their role. An executor may be called upon to negotiate with creditors and family members with legitimate claims to the estate. They may also have to defend the estate in court against unreasonable claims.

The role of executor can be a heavy burden, but it is a voluntary one, so the nominee can choose not to accept the appointment. Common reasons to renounce an executorship include:

· The executor may feel unprepared to handle the legal and financial complexities of the estate administration.

· As managing an estate is time-intensive, some individuals may not be able to take on the role because of other commitments, especially if their circumstances have recently changed. · Physical and mental health issues may hinder an executor’s ability to discharge their duties.

· Administering an estate can be emotionally overwhelming, particularly for grieving family and friends of the deceased.

· The executor may have interpersonal conflicts with beneficiaries or other executors that would be an unnecessary hindrance to the estate administration.

· The executor may have a conflict of interest, such as an intention to make a claim on the estate on their own behalf.

When someone does not want to accept an appointment as executor, they can resign by renouncing probate. The renunciation process is governed by the relevant state or territory law. For instance, the Succession Act 1981 governs the administration of deceased estates in Queensland, including the renunciation and removal of an executor. While the legal principles are similar across jurisdictions, there are some variations in procedural requirements.

Once a nominated executor knows that they cannot proceed in the role, they should renounce as soon as possible. This should preferably occur before probate is granted and before the executor begins to discharge any of the duties of the role (such as selling assets). Of course, this may not be possible if circumstances change unexpectedly, but it can create difficulties if an executor has already been ‘intermeddling’ with the affairs of the estate. Notably, however, arranging the deceased’s funeral is not considered intermeddling in the estate.

A renunciation must be voluntary and not the result of coercion. In order to resign as executor, the person needs to file the appropriate documentation with the courts (such as the Renunciation of Probate Form 114 in Queensland). Often this form is filed alongside the new application for probate or letters of administration. By signing this form, the nominee declares that they have not intermeddled in the estate, and renounces all rights, powers and authorities to probate the will (though not the right to inherit from the estate as a beneficiary).

However, the executor cannot renounce probate in this way if they have already intermeddled in the estate. Once the courts have granted probate, the executor can only resign their appointment if the court revokes the grant of probate. The court will only take this step if it can be persuaded that it is a necessary step given the circumstances. It is therefore essential for the executor to think carefully about their capacity to complete the administration of the estate before accepting the role of executor and intermeddling in the estate.

Sometimes an acting executor will want to give up their role because they find that the duties are more complicated than they expected, or because a personal issue arises unexpectedly. In those circumstances, the executor should consult with a wills and estate lawyer for further advice.

Who administers the estate if an executor renounces their appointment?

If the testator appointed more than one executor in their will, then the remaining executor takes over the role if the other renounces their appointment. Alternatively, the testator may have nominated a substitute executor in their will to act if the first nominee is unable to act. Given the potential for unexpected events to arise, testators should appoint co-executors in their will or provide for a substitute. However, if there is no other person authorised under the will to act as executor, then a suitable person (such as a major beneficiary) can apply to the court for a grant of letters of administration with will annexed. If the court grants permission, the applicant will be appointed as an administrator to carry out the administration of the estate according to the terms of the will. The role of administrator is largely the same as that of an executor.

If you have been named as executor in a will and cannot accept the appointment, you should renounce probate at the earliest possible opportunity. Our wills and estates lawyers can provide advice about declining the appointment and how to proceed with the deceased estate administration. Please reach out to Go To Court Lawyers on 1300 636 846 for any legal assistance.