To be or not to be an… Executor…
Have you been appointed an Executor of a Will?
You may not know that you have been appointed as an Executor until many years after the Will has been made and possibly not until the death of the will maker. This is because there is no legal obligation for a will maker to notify an Executor of their appointment. Many Executors only find out when provided with a copy of the will naming them as Executor.
What do Executors do?
When a person makes a Will, they nominate a person(s) to act as their Executor to administer their estate upon their death. An Executor is responsible for making arrangements such as locating the Will and notifying the beneficiaries in the will; looking after the assets of the estate to ensure they are safe and insured, liaise with banks, financial institutions, insurance companies, creditors, apply to the Court for a Grant of Probate, complete income tax returns, pay all debts, divide the estate and create trusts where required.
Being an executor can be challenging and time consuming and serious consideration should be given before entrusting these takes to family members and/or friends.
What if you don’t want to be an Executor?
Your appointment as an Executor is not compulsory. Often people that have been appointed as an Executor are unwell, unable or simply unwilling to undertake the executor role they were appointed to perform. If you don’t want to act as the Executor, you can give up your rights to be the Executor. This is referred to as ‘renouncing’ your appointment as Executor.
If you have not intermeddled with the Estate you can give up your rights under the Will to apply for Probate by renouncing your appointment. Intermeddling might include making arrangements for the estate such as notifying financial institutions, notifying beneficiaries, liaising with asset holders, ie basically undertake executor type duties.
Where an Executor has not intermeddled with an Estate, the Renunciation process is relatively quick and involves completing the proscribed Renunciation of Probate form together with an Affidavit supporting the said renunciation and lodging those documents with the Supreme Court of Victoria. Once the renunciation of Probate is filed with the Court, you will be removed as Executor of the estate.
If you decide to Renounce your appointment as Executor, you need to act quickly to file the Renunciation to ensure that you don’t take any steps that could be seen as accepting the appointment of Executor.
The Court is concerned to protect the interests of the beneficiaries and creditors of the estate which is why if there has been intermeddling with the estate, you may not be able to simply refuse to act as Executor and cannot simply renounce Probate. Generally, once a person has accepted the office of Executor (as evidenced by intermeddling), the Executor cannot refuse to continue, however if a situation arises where an Executor is unable to continue then an Application needs to be made to the Supreme Court of Victoria setting out the reasons why the Executor cannot continue and any impact this has on the interests of the beneficiaries and creditors of the estate.
If you would like more information on this topic, please speak to a member of our Wills, Estate and Probate team.
