No, just because they have been named as an executor in a Will, does not mean they must accept the position. They are under no legal obligation to act if they do not want to.

If they have been named as an executor, but they do not believe they have the time or ability to fulfil the role, they can refuse (also known as renouncing) the position.

This is simply done by signing a formal renunciation Court form, renouncing all their right and title to probate and administration of the estate.

What happens if an executor chooses to renounce?

If an appointed executor chooses to renounce their position, and they have signed a renunciation, the remaining executor/s of the estate can take on the administrative duties.

The Will may also specify who is to act as the reserve (alternate) executor in the event the primary executor refuses, is unable or unwilling to act.

If a grant of probate is required, the remaining executor/s will need to exhibit the original signed renunciation as part of their probate application.

What if there is no other person named as executor in the Will?

If there is not another person named, you can apply to have a court-appointed administrator take over.

If all of the named executors are deceased or cannot be found upon the Will-maker’s death, someone else can apply to the Supreme Court to be appointed to administer the estate.

This application is called Letters of Administration with the Will. This grant applies where there is a Will, but someone other than the named executor is making the application for the grant.

What if one executor cannot act, but they have not signed a renunciation?  

If there are multiple executors named in the Will, and one does not want to be involved in the probate and estate administration process, then they can choose to have “power reserved” to them by the Court.

The other remaining executor/s will then take on all of the probate and administrative responsibilities.

What does it mean to have “power reserved” to an executor?

This is where the acting executor issues a formal notice, stating that they will be applying for a grant of probate in their name only.

The Court will then issue the grant in the name of the acting executor only, with a conditional note that the other executor has had power reserved to them to apply themselves.

However, an executor can only have power reserved to them, if the Will names other executors who can step in and act in their place.

If the Will does not name other executor/s, then the only way the named executor would be able to refuse, is by singing a formal renunciation.

When might power be reserved to an executor?

Power reserved can be applied in any situation where an executor does not wish to act, or there may be a conflict of interest in them acting in an estate dispute.

Some examples where power may be reserved to an executor include:

• they live in a different country and it is not practical for them to take an active role in the estate administration;

• they are in poor health or is in a nursing home and the role of executor may be too demanding; or

• they may also be a beneficiary of the estate and have subsequently lodged a claim for further provision against an estate. In this instance, the Court may make a grant with power reserved to the executor whilst the dispute is ongoing (with power reserved for them to apply and join as co-executor, once the claim has been resolved or decided).

Having power reserved to them, would mean that the other executor/s can go ahead with the administration of the estate without further delay, without the other needing to be involved.

Can an executor who has had power reserved to them become involved at a later date?

In this instance, the executor has not given up their power; rather, they have stated that they agree to the other executor/s administering the estate on their behalf for the time being. It is not permanent.

By having power reserved to them, the executor will not need to take an active role in the estate, but if the need arises at a later date for them to become more involved, then they still have the option and power form the Court to file an application.

Seek legal advice

It will be important for executors to seek proper legal advice when considering renouncing their role or applying for grant of representation with power reserved.

Do not hesitate to contact us with any questions or concerns in respect to your position during the course of the administration of a deceased estate.