Updated 5 October 2019
Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role. You are not obliged to, but you need to take steps to put that into effect as soon as practical.
Can an executor resign?
There is no requirement that a named executor in a will must accept the role of executorship, even if you had agreed with the willmaker that you would.
So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.
If you don’t wish to act when the time comes, and you have not dealt with estate property, 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, 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?
Ideally 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.
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. You can find a solicitor who specialises in wills, estates and probate from your state or territory’s law society websites 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 and that
- they renounce all right to probate of the will and 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).
Where to get the Renunciation Forms for the executor to renounce probate
The prescribed form is a formal legal document which can be obtained from the Probate Registry of the Supreme Court in your state or territory. They are mostly available for download, find links to the Probate Courts2 and their registries here.
New South Wales – Court forms for renouncing probate – representing yourself
- The form is Number 123, Renunciation of Probate.
- An example of a completed enunciation of probate form can be found on the NSW Department of Justice, Law Access website here, follow the links. And Law Access provides Instructions for filling out a Renunciation of Probate Form, click here.
- If you are renouncing in favour of the NSW Trustee and Guardian use Form 124. But it is a good idea to discuss with them first before doing so.
South Australia – Court forms for renouncing probate
In South Australia renunciation forms such as to renounce probate, executorship or letters of administration (in the case of no will) can be downloaded from the list of Probate Forms provided by the Probate Registry here. The Probate Registry has produced four different forms for renunciation to cater for different situations as follows:
- 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 syndic of a company not authorised by statute to apply for probate
Contact the Probate Office here: https://www.supremecourt.vic.gov.au/contact-information on the prescribed forms to renounce executorship or probate. Alternatively seek advice from a solicitor specialising in wills and estates.
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, letters of administration and so on. They provide a summary of the minimum requirements for both a probate application and an application of letters of administration. Follow the links from http://www.courts.qld.gov.au/courts/supreme-court/wills-and-estates-probate.
Wills and Probate Court renunciation forms can be found on the list here. It goes to this page: https://www.courts.qld.gov.au/services/wills-and-probate/forms.
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.
Tasmania – Court forms
In Tasmania the forms, information for renouncing probate and other information on the administration of deceased estates can be found on the Supreme Court of Tasmania’s website here.
Renunciation of Probate (Probate Form 29)
At the time of this update (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
In the Northern Territory the Supreme Court Registry in Darwin and Alice Springs provides probate information in kit form and online about the process for renouncing probate, click here. Court forms to renounce probate are provided for download in Word format at the bottom of the Supreme Court Registry Wills and Probate page here, or click below. Note the various information on that page including completing court forms, locations of Registries and contact details.
What if you were appointed both an executor and a trustee?
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.
What happens 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, but they need to find someone else competent and willing to act in their place, and notify the court in the usual way as soon as possible. As mentioned above, the public trustee in the relevant state or territory can fill this role, but solicitors specialising in the administration of deceased estates, some accountants also do this.
Deed of renunciation
The above applies to situations where a person appointed as an executor does not wish to act and so wishes to resign or renounce the role. The procedure to do so is typically done by completing the relevant court forms.
This contrasts to the situation where a deceased estate contains trusts requiring administration which follows completion of the executorial duties. The precise timing of the transition from executorial work to trust administration can be blurred, each situation being different.
It is often the case that 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 as well.
However the point being made here is that if someone acting as a trustee in this context but are no longer able or wish to act, the procedure to resign is different to that for an executor. The resignation process is usually by a specifically prepared document called a deed of renunciation of trustee which must be witnessed. Specific legal advice should be sought.
Finding another executor – family, professional advisers
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 to step in by statute and act as executors if no one else is available so that no deceased estate is left unadministered. For links to public trustee websites click here.
Trustee corporations may be appointed executors, either alone or jointly with another person. Trustee companies, being a body corporate, need to appoint an individual person to act for them; an agent or nominee, sometimes called a “syndic” in these 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.
How can another person be ‘appointed’ to replace a renouncing executor?
In these circumstances 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, it is a good idea to consult a legal practitioner offering services in this area.
1. Prescribed forms are 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 so that whatever is sought to be done has legal effect. This is part of procedural law – a body of law in its own right.
2. A Probate Court is a specialised court within the Supreme Court of each state and territory with the power and authority to deal with the administration of deceased estates.
19 January 2015, last updated 5 October 2019.
© BHS Legal