​​How does an executor resign?​

Being an Executor of a Will can be a difficult job.  Sometimes an Executor does not have the necessary resources or qualities for the role or is just unwilling to assume or continue in that role. In such cases, they must formally renounce their role.

What happens if I do not want to be an Executor?

An Executor is the person who is appointed by a Will maker to ensure the terms of their Will are carried out.  An Executor’s responsibilities broadly include: 

  • locating the deceased’s last Will; 
  • organising funeral arrangements; 
  • identifying all assets and liabilities; 
  • obtaining probate of the Will; 
  • paying debts; and 
  • distributing the estate in accordance with the directions in your Will. 

Perhaps you agreed to be an Executor of the Will of a family member or friend years ago (or were named by the Will maker without being consulted), but now things have changed, and you are not willing to assume that role.  Alternatively, you are no longer able to act as an Executor because you are unwell, ill-equipped, or overseas.  If so, what do you do? 

There is no requirement for you to accept the position as Executor but if you do not wish to act, you must formally renounce your appointment. 

Set out below is an overview of the steps you must take. 

How to resign if you have already started acting as an Executor

If you have already started acting as an Executor but are no longer willing or able to continue to act, you must renounce your executorship.  To do this, you must apply to the Supreme Court of the relevant State/Territory. 

Once you have renounced your Executorship, the Supreme Court may appoint a replacement Executor or allow the back-up Executor named in the Will to step up and act. 

It is important to understand that renouncing your executorship means that you are not able to be reinstated as an Executor unless you apply to the Court first and obtain its consent.   

If wish to renounce an Executor role and are not sure what to do, we recommend you call us on 1300 654 590 or send us an email before taking any action to ensure that there are no issues or complications with the renunciation process.

How to resign if you have not already started acting as an Executor

If you have not commenced acting as an Executor (for example, you have not obtained a Grant of Probate yet), the process is simpler.  If there are other Executors appointed in the Will, they will note that you have renounced your executorship when they apply for Probate.  Usually, you will be required to sign a renunciation form which will be filed with the Probate application. 

If there are no other Executors named in the Will, a family member of the deceased will have to apply to the Court for ‘Letter of Administration with the Will annexed’ instead of Probate. 

If you are a beneficiary under a Will and there is no executor, call us on 1300 654 590 or send us an email and we will help you to apply for Letters of Administration with the Will annexed.

Can I take steps now before the person has died?

You do not need to apply to the Court to be removed as an Executor before the Will maker has died, but if you do not wish to act, you should let the Will maker know, so they can appoint someone else. 

What if I don’t want to act as an Executor now, but I might wish to act as Executor in the future?

In most States and Territories, Executors who do not want to act but wish to reserve the right to change their mind, can apply to the Court for ‘leave reserved’.  An ‘Executor with Leave Reserved’ is classified as a ‘non proving Executor’ who can step up to act as Executor if the ‘proving Executor’ is no longer able to fulfill their duties. 

The proving Executor will mark you as having leave reserved when they apply to the Court for Probate.  However, note that applying for leave reserved is only an option if there is another Executor named in the Will who can act in lieu of you. 

I don’t want to act but there is no other Executor named in the Will

If you do not want to act and there is no other executor appointed in a Will, the Court may grant the administration of the estate to a person entitled to the residue of the estate or (if appropriate) some other share of the estate.  If the beneficiaries so request, the Public Trustee or a private trustee company may be appointed by the court to administer the estate.  If there is no person in the State over the age of eighteen years willing or able to act as executor, the court may order that the administration be granted to the Public Trustee. 

How we can help

If you have been appointed as the Executor of a Will and you do not wish to act, contact us on 1300 654 590 or send us an email.  We will talk you through the renunciation process and provide you with a plan so that your renunciation is done properly.

 

The information contained in this post is current at the date of editing – 17 July 2024.

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