Renouncing as an executor in Victoria

People renounce for many reasons. The estate may be complex or in dispute, the executor may live overseas, be unwell or have other commitments, or may have a conflict of interest. Some executors simply prefer that a beneficiary or co-executor take the role.

The executor's role involves real duties and potential personal liability. Those duties are explained in executor advice and the operational tasks in the executor duties checklist. Understanding them is a sensible first step before deciding whether to accept or renounce.

The Supreme Court publishes renunciation of probate forms. The Court's instructions state that an executor who wishes to renounce is to complete and sign the renunciation of probate form. Before the executor signs, a legal practitioner should explain the effect of the renunciation to the executor and then witness their signature. The legal practitioner then completes and swears or affirms an affidavit of verification.

1. 1Consider the decisionRead the will, understand the role and consider whether any co-executor or substitute executor will act.
2. 2Explanation by a legal practitionerA legal practitioner explains what renouncing means and its consequences.
3. 3Signing and witnessingThe executor signs the renunciation of probate form in the legal practitioner's presence.
4. 4Affidavit of verificationThe legal practitioner swears or affirms the affidavit of verification.
5. 5Use in the applicationThe renunciation is filed as part of the application made by whoever will apply for the grant.

The renunciation is used in the application of the person who applies instead. It accounts for the renouncing executor, so that the Court can see why they are not applying.

The Court's unusual applications guidance refers to an executor who wants to renounce probate and who has not intermeddled in the estate. Intermeddling means acting as executor, for example by dealing with estate assets in a way that shows acceptance of the office.

Whether particular conduct amounts to intermeddling depends on the facts. Steps taken purely to protect property, arrange a funeral or secure documents may be treated differently from selling assets, paying beneficiaries or running a business. Because the consequences can be significant, a named executor who is unsure whether to act should obtain advice before doing more than is necessary to keep assets safe.

Once probate has been granted, the executor holds the office by virtue of the grant. Simply signing a renunciation form is not the pathway. An executor who wishes to step away after a grant may need to apply to the Court for an order discharging them and, where needed, appointing a replacement. Removal can also be sought by others in some circumstances.

The Court's concern in such applications is the proper administration of the estate and the interests of the beneficiaries. The procedures and principles are discussed in executor disputes.

Where the will appoints more than one executor, one may renounce while the others prove the will. The Court's FAQs also explain that probate is generally not granted to more than four people; where more than four executors are named, four may apply with leave reserved to the others.

An executor who does not wish to act immediately but may want to later is in a different position from one who renounces. Reserving leave to apply later is different from renouncing, and the choice should be made deliberately.

Many wills appoint a substitute executor to act if the first executor cannot or will not. Whether a substitute can apply depends on the wording of the will: some substitution clauses apply only if the first executor dies, others if they are unable or unwilling to act. The Court's guidance says the will should be read carefully to determine whether any substituted executor has a right to apply.

If every executor has renounced, died or is unable to act, and no substitute executor can apply, the usual grant is letters of administration with the will annexed. The Court's grant information states that this grant is generally made to the person or persons with the greatest interest under the will.

Each named executor must be accounted for in that application, for example by death, renunciation or medical evidence of incapacity. See letters of administration with the will annexed.

An executor who lacks capacity cannot validly renounce in the ordinary way. The Court's guidance states that where an executor is unable to act, an affidavit outlining the reasons, sworn or affirmed by that executor's treating medical practitioner, must be filed. The Court publishes medical practitioner affidavit forms for this purpose.

A named executor who is uncertain has more than two options. The choice should be deliberate and recorded, because each has different consequences.

Renunciation is appropriate where the person has decided not to act at all. Power reserved may suit a co-executor who cannot act now but may be able to later. The right choice depends on the will, the estate and the person's circumstances.

A renunciation is filed with the Probate Office using the Court's renunciation forms. Keeping a record of the decision, the date, any advice obtained and whether the person has done anything in relation to the estate helps if the position is later questioned.

Whether a renunciation can later be withdrawn, and in what circumstances, depends on the Court's discretion and the facts. It should not be treated as a provisional step. Anyone considering it should assume it is intended to be final and seek advice first.

Substitute executor clauses

Many wills appoint a substitute executor if the first cannot or will not act. Whether a renunciation triggers the substitution depends on the wording of the clause. The Court's complex applications guidance notes that appointment clauses must be read carefully to decide whether a substituted executor has a right to apply. If no one named can act, the right may pass to a beneficiary applying for letters of administration with the will annexed.

Renunciation is a step taken before probate. Once an executor has obtained a grant, a different pathway applies. An executor who wants to stop acting, or whom others want removed, generally needs an order of the Court under the Administration and Probate Act 1958 (Vic). See executor disputes for how removal and replacement work at a high level.

Protecting assets without intermeddling

A person who has not decided whether to act may still be concerned about the estate. Genuinely urgent protective steps, such as securing a house or keeping insurance current, are different from dealing with assets as if they were executor, such as selling property, collecting debts or distributing funds. Doing the latter may amount to intermeddling and make renunciation difficult. Where something must be done urgently, advice should be obtained first.

• Dealing with estate assets before deciding whether to act, and then trying to renounce.
• Confusing renouncing the executorship with giving up a gift under the will.
• Signing a renunciation without the explanation and witnessing the Court's form requires.
• Assuming a substitute executor can act without reading the substitution clause.
• Attempting to renounce after a grant instead of seeking a Court order.
• Leaving assets unprotected while the question of who will act is resolved.

We can explain the effect of renouncing, witness and verify a renunciation, review whether earlier conduct may affect the position, and advise who is likely to apply instead. For a person who has already acted or holds a grant, we can explain the Court pathways for stepping away.

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