Renouncing probate is when you are a named as executor in a deceased’s will and wish to resign. You are not obliged to take it on. Resignation is by completing a Renunciation of Probate form from the Probate Court, find links below. If you want to renounce it is important to take steps to put that into effect as soon as practical.
Resigning means you are renouncing all your rights and any powers as executor under the will.
Can an executor resign?
There is no requirement that a named executor in a will must accept the role of executorship. This is so even if you had agreed with the willmaker that you would. An executor resigning is called renouncing probate or to renounce probate. An executor wishing to resign should not have intermeddled in the estate already. See further below on what intermeddling means.
Alternatively you could remain as executor and seek the services of probate solicitors to administer the estate on your behalf.
If you don’t wish to act when the time comes, and you have not dealt with estate property (intermeddled) you can give up the right to do so. It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning. It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.
If you were named as an executor in someone’s will, you have the right to apply for a grant of probate (also known as a grant of representation). This is because you were the personal choice of the willmaker in their will to be their executor. It also means you have the right to renounce it as well. Probate is permission from the court to deal with the estate.
To renounce executorship or probate means you give up your right as executor appointed under the will to apply to the court for a grant of probate. A grant of probate is the legal process to prove that the will was the last one before the court will issue it granting the applicant permission to then administer and distribute the estate as per the instructions in the will.
As mentioned above, it is not compulsory to act as an executor or trustee. An exception applies to public trustees or a trustee company where they are required to do so by legislation.
Timing – when should an executor do this?
Renouncing probate should ideally be done as soon as possible before there has been any administration of the estate, which can be regarded as intermeddling (see below), and before probate has been granted. The right to renounce needs to be done before doing anything which could be interpreted as taking on or assuming the role. Making arrangements for burial as a practical matter to be undertaken without undue delay are not usually regarded as intermeddling.
Check the will
If not already done so, it is important to check what the will states. It may be that the deceased appointed another person in addition to, or as a substitute in case their first choice was unable to act. The substitute or additional person appointed as executor can then apply for probate.
If there is no one else named the next option is for a named beneficiary to act and apply for probate. Or the person to whom the residue of the estate has been given, (the residuary beneficiary). In these situations the application is for letters of administration with the will annexed. Individual legal advice and assistance should be sought from a solicitor.
What if a grant of probate has been made?
Once a person has accepted the office of executor, and a grant of probate has been made, the executor generally can’t refuse to continue. However sometimes a situation might arise where an executor is unable to continue. Application then needs to be made to the court setting out the reasons why they can’t continue, and any impact of this on the interests of the beneficiaries and creditors of the estate.
How can an executor renounce probate?
It is simply a matter of completing the relevant legal form which can be obtained from the Probate Registry of the Supreme Court in your state or territory. It is a written declaration in the prescribed Renunciation of Probate (or similar name) form.1 It is not necessary to give reasons as to why you don’t want to be an executor.
After completing the form it must be signed in front of a witness, then lodged or filed in the Probate Registry of the Supreme Court in your state or territory. Lodging in Court is important so that it will be legally effective.
Lodging the completed form in the Probate Court
Contact the Probate Registry in your state or territory for their current information on how the completed document may be lodged in Court, whether or not it is possible to do so online, and if not, what is required. With technological change Courts are frequently revising their document filing procedures. You can also consult a legal practitioner to help you. Find a solicitor specialising in wills, estates and probate from your state or territory’s law society website via links here.
Obligations as executor end when filed in court
When the completed declaration in the prescribed form has been lodged or filed in the court, your rights and obligations in regard to your appointment as an executor end.
In renouncing probate, executors need to declare that they
- were appointed by the will (and any codicils), citing the dates and place;
- have not intermeddled (see below) in the estate of the deceased;
- will not interfere in the estate afterwards with the intention of defrauding creditors;
- renounce all rights to probate of the will and codicils, to all trusts arising under the will and powers.
Other details required will be the full name of the deceased, their address, date of death, the date their will was made and any codicils.
When you renounce probate, your rights in respect of the executorship cease. See for example section 69 of the Probate and Administration Act 1898 (NSW).
Forms for renouncing probate
For most States and Territories you need to complete a renunciation of probate form prescribed by the Probate Court, links below. A prescribed form is a formal legal document by the Court to fulfil requirements under the relevant statute laws. Court Forms can be downloaded from the Probate Registry of the Supreme Court in your state or territory.
Court forms, information and links by jurisdiction:
|New South Wales||Victoria|
|South Australia||Northern Territory|
|Western Australia||Australian Capital Territory|
New South Wales renouncing probate forms
Download the Renunciation of Probate Form, Number 123 from the New South Wales Supreme Court‘s List of Approved Uniform Civil Procedure Forms here. PDF and Word formats are available.
- Form 123 Renunciation of Probate.
- An example of a completed enunciation of probate form is on the NSW Department of Justice Law Access website here, follow the links. And Instructions for filling out a Renunciation of Probate Form, click here.
When the NSW Trustee and Guardian is to be executor use Form 124
Use Form 124 “Renunciation in favour of NSW Trustee & Guardian”, if you are renouncing and the NSW Trustee & Guardian (NSW Public Trustee) is to be the executor.
South Australia – Court forms for renouncing probate
In South Australia renunciation forms such as to renounce probate, executorship or letters of administration can be downloaded from the list of Probate Forms provided by the Probate Registry here. The Probate Registry has produced the following renunciation forms:
- Form 47 – Renunciation of probate
- Form 48 – Renunciation of probate by a trust corporation
- Form 49 – Renunciation of letters of administration with the will annexed
- Form 50 – Renunciation of letters of administration with the will annexed to the syndic3 of a company not authorised by statute to apply for probate
Victoria – Court forms for renouncing probate
The Wills and Probate jurisdiction of the Victorian Supreme Court site has information on probate and the administration of deceased estates.
To renounce probate (executorship) in Victoria you need to complete two forms prescribed by the Court below. Download from the Court’s Probate Forms page.
Once completed and witnessed according to the instructions they are lodged at the Probate Office. Alternatively seek assistance from a lawyer near you.
Queensland – Court forms for renouncing probate
In Queensland the Wills and Estates (Probate) Registry of the Supreme Court have set out the steps to follow for obtaining a grant of probate, or letters of administration. They provide a summary of the minimum requirements for both a probate application and an application of letters of administration. Follow the links from https://www.courts.qld.gov.au/courts/supreme-court/wills-and-estates-probate.
ACT – Court forms
In the Australian Capital Territory information and forms can be found on the website of the A.C.T. Supreme Court.
From information on that site the Renunciation of Probate form in accordance with the Courts Procedures Rules 2006 is Form 3.15 Renunciation of probate. Find Wills and Probate Forms for the ACT here.
Tasmania – Court forms
See the Supreme Court of Tasmania’s website for forms and information on renouncing probate and the administration of deceased estates generally.
At the time of updating (October 2019) the Probate Registry of the Supreme Court of Western Australia does not provide a specific form for renouncing probate or administration among its Probate Forms.
The Northern Territory – Court forms when renouncing probate
The NT Supreme Court Registry in Darwin and Alice Springs provides probate information in kit form and online about the process for renouncing probate. Court forms to renounce probate can be downloaded from the Supreme Court Registry Wills and Probate page here, or click below.
Appointed to both executor and trustee roles?
It is common that a person is appointed both an executor and a trustee in the will. In New South Wales, Queensland and most other jurisdictions the same renunciation form covers renouncing the right to all trusts, powers and authorities expressed by the will, as well as renouncing the right to probate. The renunciation is taken or deemed to be a refusal to be a trustee of any trusts in the will.
Inter-meddling in the estate
Generally the court won’t accept an executor’s renunciation of probate if the executor has intermeddled in the estate. This is to protect the interests of beneficiaries and creditors of the estate.
What might be regarded as intermeddling in the estate is not always clear. It depends on each situation. In Queensland, the law permits renunciation if there has been some intermeddling – see section 54(2) of the Succession Act 1981 (QLD).
In some instances the extent of intermeddling might be such that it would be considered that a person named as executor had accepted the position, by their conduct such as paying creditors, selling things, and other acts that are in the nature of the executor role. The court could possibly then compel the executor to continue in the office.
On the other hand arranging the funeral and burial, one of the first tasks of an executor, and one of urgency, is not usually regarded as conduct indicating acceptance of executorship.
The rule against intermeddling is not absolute. If you are unsure as to whether anything you may have done might constitute intermeddling, seek advice from a legal practitioner practising in probate law.
Can you withdraw your renunciation of probate?
Once the renunciation has been filed and probate granted it would be highly unlikely. In South Australia there is some provision for retraction but only in limited and exceptional circumstances, and only after a grant has been made to someone in a lower degree – see Rule 48.06 of the Probate Rules of the South Australian Supreme Court.
Sole executor – what if you are the only executor and don’t want to act?
Sometimes the situation can arise where there is only one executor and they are unable or unwilling to act, and wish to renounce the executorship and their right to probate. A deceased estate cannot be left without someone to finalise it so it means someone else needs to be found. If there is no one at all the public trustee is required be legislation to fulfil the role, see below.
If there is more than one executor named and no one wants to act all may renounce the role. However a replacement competent and willing to act in their place should be found first. Then notify the court in the usual way as soon as possible. The public trustee in the relevant state or territory can fill this role, but solicitors specialising in the administration of deceased estates, some accountants and trustee companies also do this.
Finding another executor – family, professional advisers
If you are looking for someone to act as executor or if making your will and considering options see some information on finding another executor here.
Sometimes the renouncing executor may suggest suitable persons from among family, trusted friends or professional advisers used by the deceased, such as their accountant or lawyer.
Usually it is the next most interested person or beneficiary of the estate, such as a spouse, partner, child, parent, sibling, who would apply. Who falls into the description of the most interested person/s are identified according to the hierarchy of legal rules on who inherits under an intestacy; find links to the intestacy legislation here.
Public trustees and trustee companies
Alternatively the public trustee in each state and territory and private trustee companies offer executor and trustee services. Public trustees are obliged by statute to act as executors if no one else is available to avoid a deceased estate being left unadministered. For links to public trustee websites click here.
Then there are private trustee corporations who may be appointed as executors, either alone or jointly with another person. Trustee companies as corporate body need to appoint an individual person to act for them. As an agent or nominee. Sometimes this person is called a “syndic” in such circumstances.
Note that an executor may seek payment for their services out of the estate. Provision for executor’s commission may have been made in the will, but if not executors may apply to the Court.
When the only executor renounces – how to proceed
If a sole executor may wish to resign or renounce their right to the role. If there is no other person application needs to be made to the court for permission to act as “administrator” and not as executor. The application is for a grant of administration with the will annexed (that is attached), formally called Letters of Administration with the Will Annexed. For assistance and advice on your personal circumstances consult a legal practitioner offering services in this area.
Will making – when your nominated executor dies – updating your will
If your executor and trustee named in your will predeceases you, you don’t need to make a completely new will. Another person can be appointed by a short additional document or addendum to your will called a codicil. To be valid it must be signed and witnessed by two witnesses as for a will. Then kept with your original will but not stapled to it.
Deed of Renunciation
The procedure to resign from being an executor in Australia is by completing the relevant court forms prescribed by the Probate Court above. Other common law countries follow different procedures.
In England resignation is by completing a legal document called a Deed of Renunciation. If in Australia and find yourself as an executor of a will made in England but don’t wish to act seek legal assistance from lawyers who offer international services. If you don’t anyone start with the Trust and Estate Practitioners (STEP) Find a Practitioner page.
Trustee no longer wishes to act – different resignation process
Often a deceased estate contains trusts requiring administration. This follows completion of the executorial duties. The precise timing of the transition from executorial work to trust administration is often blurred.
Often the same persons appointed as executors also become the trustees of these testamentary trusts and other entities. In addition other persons may have been appointed for their specialist expertise. For example someone appointed as a digital executor to deal with finalising the deceased’s online accounts, digital footprint.
Resignation of a trustee
It may arise that someone appointed to act in the trustee role wants to resign that role.
Procedure for a trustee to resign
The procedure to resign from being a trustee is different to that for an executor. The resignation process is usually by a specifically prepared document called a deed of renunciation of trustee. This document must be witnessed properly, seek legal advice.
About prescribed forms
1. Prescribed forms are court forms containing the particular words and other requirements as prescribed specifically under the legislation. The legislation might be the uniform civil procedure rules, the court rules, or regulations to an act of parliament. Prescribed forms are part of the legal procedures essential to comply with in every respect. This is so that whatever is sought to be done has legal effect. It is part of procedural law, a body of law in its own right.
What is a probate court?
2. A Probate Court is a specialised court within the Supreme Court in each state and territory. It has the power and authority to deal with the administration of deceased estates.
What is a syndic?
3. A willmaker may name a company, a corporate entity to act as their executor and trustee. After the willmaker dies the company is then entitled to seek a grant of probate of the will from the court. The company does this by making a resolution appointing a person to act on its behalf. Or it may appoint its attorney (under a power of attorney if there is a valid one). The person so appointed is person is known as a syndic. Syndics can then make the application for a grant of probate.
BHS Legal, last updated August 2023
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