Acting as Executor, What you need to know – Part Two

What if I don’t want to continue to act as Executor?

If you do not wish to act as Executor, you can renounce. Renouncing (otherwise than a Court ordering it), can only happen before Probate is granted, provided you haven’t intermeddled in the Estate. This means you cannot hold yourself out as Executor, or do something an Executor would, and then decide to renounce. The renunciation is an uncomplicated document, and your probate solicitor can help you draft and sign the document and file it with the Court if needed.

Generally, once Probate has been granted, it is too late to renounce. However, there can be circumstances where you are unable to continue, other than simply not wanting to continue. For example, if the Executor dies, then the chain of representation principle applies. This means that the Executor of that persons Will can then continue to act as Executor by representation. If that person did not have a Will, then the chain is broken, and a new application will have to be made.

You may also be able to renounce if, during an argument, you cannot maintain a neutral position because, for example, you are also a beneficiary and you want to protect your own entitlement.

If you don’t want to continue as Executor after probate has been granted to you and the Estate is not yet fully administered, you are best you obtain legal advice as to how to proceed. In some cases, the Will appoints a substitute Executor. A new grant of probate will have to be obtained.

Once the Estate is administered, if you have ongoing obligations as Trustee, for example as Trustee for minor beneficiaries, you can usually assign the role of Trustee to another person, for the purposes of that trust.  To read more information of what the difference is between Trustees and Executors, please click here to refer to our previous article on this topic

Commission

As Executor you are entitled to commission, if you are not receiving a benefit from the estate. Generally, this will be somewhere between 1.5-2% of the gross value of the Estate. The Court’s discretion in awarding commission is guided by what is “just and reasonable”. The Court will take into account the pains and trouble in administering the estate. When considering who to choose as Executor, you may consider making a bequest to them in lieu of commission, in an attempt to avoid conflict between the Executor and your beneficiaries (if your Executor is not also a beneficiary already).

Multiple Executors – pitfalls

As nice as it might seem to have all of your children act as Executors, we often see roadblocks when multiple (usually more than two) siblings are appointed as Executors, especially if it involves step- or half siblings. When your Executors do not get along, they might need independent legal advice. A solicitor will not be able to act or continue to act for all Executors, if they express opposing views. Your estate will then have to cover legal expenses for each individually represented Executor, which will reduce the residue of the estate. A rogue Executor who is not receiving a share of the residue might be motivated to refuse to sign off on the probate application and use this as leverage to get what they want. Even though legally this is not a valid reason to cause delay, to remove the Executor involves another application to the Court, involving costs and distress for all involved.

For more information on Executors, both acting as one and assigning one, please refer to first article in this article series ‘Acting as an Executor, what you need to know-Part One‘

If you have questions about appointing or acting as an executor, speak with one of our Estate Planning Team, call on 8525 2700, or click here to request an appointment.

Our Estate Planning Team includes Rebecca Exley, Michael Solari, Nicole Commandeur and Valentina Abouzeid.

Article by Nicole Commandeur
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