If an Executor doesn't want to act, then they have the option not to providing they have not intermeddled in the Estate. Intermeddling is when the Executor has already begun working on the Estate administration. This can include collecting in the deceased's assets or settling their debts, for example.
For free initial advice and guidance call our Probate Advisors on 03306069584 or contact us online and we will help you.
Multiple Executors – Who Should Act?
One of the benefits of making a Will is that it will name an Executor or Executors to be the person or people to administer the Estate.
While there is no limit the number of people that can be appointed as Executors in a Will, a maximum of four people can apply to the Probate Registry. These are the individuals who will 'prove' the Will, be named on the Grant of Probate and actually carry out the Estate administration.
Most people therefore name between one and four people in their Will to be the Executors of their Estate. An Executor can be a close relative or a trusted friend, or it could be an organisation, such as a firm of Solicitors or a bank.
Any Executor of a Will who does not wish to have an active role in the administration of the Estate has the choice to resign or "renounce" their right to apply for a Grant of Probate. This will usually be by way of a formal Deed of Renunciation.
One of the requirements of renouncing is that the Executor has not already been involved in the administration of the Estate, and has not received any of the Estate's assets or paid any of the Estate's debts. This is legally referred to as "intermeddling" in the Estate.
If an Executor has already begun dealing with the Estate then they will need to continue unless they become unable to act for any reason. If an Executor has intermeddled in an Estate, they may be liable for the payment of any Inheritance Tax or responsible to settle debts with any creditors of the Estate.
A Beneficiary who has carried out the role of an Executor, without having actually been appointed as an Executor, may similarly be considered to have intermeddled in the Estate.
If an Executor has intermeddled in the Estate, but reaches a point where they decide they no longer wish to continue acting as an Executor, there are a number of options available.
Having Power Reserved
An Executor named in a Will can choose to have Power Reserved to them if there are other Executors named in the Will who wish to administer the Estate. This can be done even if the Executor who is having power reserved them has "intermeddled" in the Estate, so as long as the Grant of Probate has not been applied for.
It is a requirement of the Court that any Executors who are not applying for a Grant of Probate be served with a Notice of Power Reserved. This is simply a formal notice from the other "acting" Executor or Executors, advising that they are intending to apply for a Grant of Probate in their name(s) only.
The Grant of Probate issued by the Court will state the name(s) of the acting Executor or Executors but will note that power has been reserved to another Executor who is not named on the Grant.
Unlike a renunciation, an Executor who has Power Reserved to them can still choose to become involved again in the administration of the Estate at a later time if they want or need to.
Appointing an Attorney to Act on the Executor's Behalf
An Executor named in a Will can also decide to appoint someone as their "attorney" to act on their behalf and to administer the Estate for them. This is done by way of a Limited Power of Attorney, which would state that the attorney is only able to act in relation to administering the Estate, and not in relation to the Executor's own personal affairs.
When someone is appointed using a Power of Attorney, they essentially step into the shoes of the Executor and have the same powers that the Executor would have themselves.
An Executor can appoint an attorney to act in their place even if they have "intermeddled" in the Estate, so as long as the Grant of Probate has not been applied for.
An attorney can be a friend or family member, or an Executor may wish to instruct a professional person or organisation, such a solicitor or an accountant, to act as their Attorney.
What to Do if You're Appointed as Executor
If someone dies and you discover that are appointed as an Executor in their Will, it is important to carefully consider whether you wish to accept this role and the responsibilities of administering their Estate.
If you are in any doubt about your intention to carry out the role of Executor, then it is important not to begin administering the Estate. This doesn't include essential things such as arranging the funeral or making sure a property is secure and insured, however.
In some cases banks or life insurance companies may release money to Executors or even to the next-of-kin without seeing a Grant of Probate. If you are thinking that you may wish to renounce as Executor at any point in the future, then it is important that you don't receive any of the Estate's money or assets, or pay any of the Estate's debts, as you would then be considered to have intermeddled in the Estate.
To speak with a Co-op Probate Advisor call 03306069584 or contact us online and we will call you.