Probate and inheritance - how to deal with the financial affairs of someone who has died

Probate: I am named as an executor in a Will
– do I have to act?

8 November 2019

The time following a bereavement is often extremely difficult for loved ones of the deceased, which can be exacerbated by the formalities that must be dealt with during the course of the probate process. 

A surviving spouse will often find themselves appointed as an executor of their husband or wife’s Will and be expected to deal with administrative tasks in a time of struggle and emotional upheaval. Similarly, children may find if difficult to act following a parent’s death. Even when solicitors are instructed to act, providing the required information and then checking the inheritance tax and probate application is accurate (among other tasks) may cause unnecessary extra stress. 

As we set out in our previous blog, the role of executor is not one to be taken lightly and there are many reasons why a person appointed to the role may not wish to carry it out. 

Importantly, appointment as executor in a Will does not mean there is a legal obligation to undertake the role. Aside from the emotional struggle, there are many reasons why someone may not want to act as an executor; for example there may be a conflict of interest, or concern about the amount of time that will need to be committed.

What options do you have when you're named as an executor?
 

  1.  Act as an executor
    Accept your appointment and act as executor (with all the responsibilities that come with the role). 
     
  2. Renounce 
    You can renounce your right to act as executor and obtain the grant of probate. This needs to be in writing and signed in the presence of a witness and done at the beginning of the probate process when you have taken no action as an executor. When a renunciation is completed in this way the effect is as if you had never been appointed as executor of the estate. The other executors (or replacement executors) can then obtain the grant of probate.

    If there are no other named executors in the Will, this does not stop you renouncing but does mean that someone (there is a prescribed order of preference subject to relationship with the deceased) will need to act in your place. Renunciation means that you would not be liable for any actions carried out in the capacity of an executor.
     
  3.  Reserve power  
    In some situations, to renounce this right completely may seem too extreme, for example you may not feel emotionally strong enough to deal with the formalities of being an executor or have enough time to commit to the administration, but do not want to feel excluded completely from the process. The option available is to have ‘power reserved’. This means the other named executors will obtain the grant of probate but by reserving power, the executor who does not initially apply for probate will retain the right to prove the Will at a later stage (for example when they have come more fully to terms with their loss and feel more emotionally robust and able to deal with the process).

    A separate application to the Probate Registry will be made at this point which will lead to what is known as a grant of double probate. Following such a grant, any documentation will need to be signed by all the executors to the Will. As an executor with power reserved you would have limited liability; there would be difficulties in making a claim against a non-proving executor, but that does not mean it cannot be made (it would be dependent on the situation). However, in the event that you were to apply for double probate, all actions carried out by the original proving executor will stand and therefore you will have the same duties, liabilities and rights as the executor who took out the original grant of probate.

 

If you have been appointed as an executor to a Will and you are unsure as to whether you are willing or able to carry out the role, you should seek legal advice to navigate the various options available to you. You will need to consider to what extent, if any, you would like to be involved and decide from there whether you will accept your appointment as executor, reserve the power to step back in at a later stage or revoke it entirely. 

Further information

For further information on the issues raised in this blog, please contact a member of our private client team.

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