Can a Personal Representative Step Down?
27 June 2017
Whether a Personal Representative can step down from their duties or not depends on a number of factors, the most important of which are:
- Whether they are appointed as an Executor or as an Administrator
- If they are an Executor, whether they have intermeddled with the Estate
- Whether the Grant of Representation has been issued
An Executor is appointed when making a Will. Even though they are appointed, an Executor can (with two exceptions) choose to step down if they wish, even if they have agreed with the deceased during their lifetime to act.
To step down the Executor needs to sign a Deed of Renunciation, which is usually a straightforward Deed whereby the Executor agrees to give up the role and all their responsibilities. The Deed must be filed with the Probate Registry to be made final. This is usually done by the other Personal Representatives who are applying for the Grant of Probate, but the person stepping down as Executor can file the Deed if he/she wishes.
Once finalised, the Executor will not have any right to apply for a Grant of Probate in the future. At the same time, if things go wrong in the Estate, the renouncing Executor will bear no personal responsibility for this.
Once it’s been made final, a renunciation can only be retracted by the Court.
When Can an Executor Not Step Down?
There are two situations whereby an Executor is not permitted to renounce:
- Where a Grant of Probate has been issued to the Executor. As a general rule Executors are not allowed to take the Grant of Probate and then decide they no longer wish to act. The Probate Registry does have a limited power to revoke a Grant of Probate on the agreement of all of the Personal Representatives, however they do not exercise this power lightly and will generally require evidence of a special circumstances justifying this relief.
- If the Executor has ‘intermeddled’ in the Estate. This is basically where the Executor has dealt with the administration of the Estate before the Grant of Probate has been issued as if they were in fact the Executor.
In England & Wales there are no hard and fast rules as to when someone will be treated as intermeddling. ‘Executor-esque’ actions such as selling the deceased’s property, paying, collecting or releasing their debts or carrying on the deceased’s business could be seen as intermeddling. However, a person will not have intermeddled where he/she merely carried out acts of charity, humanity or necessity – for example, arranging the funeral, ordering necessary goods for the dependents of the deceased, or protecting the property of the deceased by moving it to a safe place.
An Executor who intermeddles loses their right to renounce Probate, and can be forced to take the Grant by the beneficiaries of the Estate via a process called Citation. Therefore if an Executor is thinking about renouncing he/she should ensure this is done early, and to be completely safe should avoid taking any actions in the administration of the Estate that might be classed as intermeddling.
Alternatively, if the Executor who does not wish to act is one of a number of Executors appointed under the Will, it is possible for the other Executors to serve a Notice of Power Reserved on the non-actor. The Notice makes it clear to the non-actor that the others plan on acting without him/her; so long as the individual have no objection to this, there is nothing further that he/she needs to do. This procedure does not require the express consent of the non-actor. However the Executor is still entitled to join in the Grant of Probate at any point in the future, for any reason – they have not given up any of their rights to act, merely had them reserved.
An Administrator is a Personal Representative who is appointed by the Probate Registry in a situation where there is no Will or, alternatively, if there is a Will but no Executor is appointed, or all of the Executors have died, renounced, and so on.
The persons who can act as Administrator closely follow the beneficiaries to the Estate under the Intestacy Rules (or under the Will). Any of those potential Administrators have the right to apply for the Grant of Representation without the need to give notice to any of the others – it is ‘first come, first served’.
If a potential Administrator does not wish to act, there is no need for him/her to take any further action. There is no need to renounce, since there is nothing to renounce from. Whilst a potential Administrator is capable of intermeddling in the Estate, doing so will not force him/her to apply for the Grant, albeit he/she will be personally responsible for any actions taken.
As for Executors, once a Grant has been issued to an Administrator he/she cannot step down without an Order from the Probate Registry.