After someone dies, the executor named in their Will is responsible for obtaining a Grant of Probate and winding up their affairs. But in some cases, the executor might not be willing or able to take on the role. We explain the renunciation of probate and your options if you do not want to be an executor.
Have you been appointed as executor under the will but don’t want to administer the estate? Our highly experienced Probate Solicitors can help. Call them on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – with no strings attached.
What is probate?
Probate is the term often used to refer to estate administration or finalising someone’s affairs after their death. One or more executors will usually be named in the deceased’s Will. It is their responsibility to take on the estate administration.
A Grant of Probate is a document giving legal authority to the executor of a UK will to administer the estate. A Grant of Probate might not be needed if the estate is small. If the estate includes substantial savings or a property, then a Grant of Probate is necessary.
Click here to read more about estate administration and how our Probate Solicitors can help you
What is renunciation of probate?
In short, it’s the legal term when executors who have been appointed under a will to administer the estate of someone who has died, give up their legal responsibility and executor role permanently.
Why would you want to renounce probate?
Administering an estate is notoriously time-consuming and can also be complex. Frankly, it’s not for everyone. The role includes the following:
· Valuing the estate
· Calculating and paying any Inheritance Tax due
· Applying to the Probate Registry for a Grant of Probate
· Collecting in the deceased’s assets
· Clearing and selling the deceased’s property
· Paying all of the estate’s debts and liabilities
· Preparing detailed estate accounts
· Distributing the estate to the beneficiaries named in the Will
If an executor makes a mistake, they will be personally liable for any loss to the estate. For example, paying Inheritance Tax late means HMRC may charge interest and a penalty and the executor would have to pay this themselves from their own money.
It can also be the case that an executor is a lot older than when they were appointed in the Will and they no longer feel able to take on the role.
Renunciation of probate by an executor means that they will not need to administer the estate.
If you are appointed as an executor but want to avoid acting, it is crucial that you do not work on the estate administration in any way. If you do, you will not be able to renounce probate.
Click here to read more about the Role of an Executor
Is renunciation of probate the right option for you?
While dealing with an estate administration can seem daunting, if you were the person the deceased chose, you may be wondering whether you should renounce. It is essential to consider this carefully, as renunciation of probate is permanent and you cannot change your mind afterwards.
There are other options which may allow you to be involved with the estate administration without taking on the bulk of the paperwork yourself. If you’re uncertain, then before renouncing, why not give 1 of our probate solicitors call for a no strings attached chat about your choices to ensure you are happy with your decision.
If you do renounce, you will still inherit anything left to you by the deceased.
Who will administer the estate if I resign as executor?
If the Will appointed more than one executor, then the other executor or executors can deal with the estate administration.
If you were the only executor, someone else can apply for authority to wind up the estate. This will usually be a beneficiary named in the Will. They will apply to the Probate Registry for a Grant of Letters of Administration with Will Annexed. This is similar to a Grant of Probate. The applicant will be appointed as the estate administrator and will then have the legal authority to deal with the deceased’s affairs.
How do I renounce probate?
If you want to renounce probate, you must sign a Deed of Renunciation or the government’s form PA15-Renunciation. It’s a relatively simple 3 page form. You will need to fill in details of the deceased and the Will and sign a declaration stating that you have not intermeddled in the estate.
Your signature needs to be witnessed by an independent witness.
You should then give the deed of renunciation to the person dealing with the estate administration. They will send it to the Probate Registry with their grant application.
What is intermeddling?
You can only renounce probate if you have not ‘intermeddled’ in the estate. This broadly means taking any steps to deal with the administration. Even small tasks can be intermeddling. This means that if you are considering renouncing probate, you must not involve yourself with the estate.
And that’s why, if you’re thinking of resigning as an executor, it’s important to make a decision as soon as possible – or you might find that by intermeddling you are stuck with the role.
Is there another option to renunciation of probate?
Yes, there are two other alternatives to renouncing probate that may be a better choice:
· Having power reserved
· Instructing an experienced probate solicitor to deal with the estate administration
1. Probate with power reserved – what is it?
Having power reserved means that you will not need to deal with the estate administration unless you wish to at a later date. You can leave the other executor to wind up the estate. Should they need help at some point, or should you want to join in, you can ask the Probate Registry to give you the power to act as an executor in the future by applying for a Grant of Double Probate.
This option will generally limit your personal liability for any mistakes made by the executor dealing with the estate administration while you had power reserved.
2. Asking a probate solicitor to administer the estate
An alternative is to instruct a probate solicitor to administer the estate. You will be an executor but the solicitor will handle all of the administrative tasks. All you would need to do is sign some of the documents and answer some questions if needed. Our team handle this role for executors on a regular basis – allowing you to do as much or as little of the work as you wish.
This is a popular choice as it allows the executor to take on the role of the executor as the deceased wanted but limits their liability and means that they do not have the demanding job of dealing with the whole estate themselves. The estate will usually pay the probate solicitor’s costs.
What is presumption of revocation?
In circumstances where it’s known that the original Will was in the testator’s possession before their death, but it can’t be found after they pass, there is what is known as a “rebuttable presumption” that the testator previously destroyed that will intending to revoke it. “Rebuttable” means that it will require some clear evidence to overturn this presumption.
If no one can find the will, but it’s generally believed that there is a valid will in existence, our team suggest that the following steps to find will are a good place to start:
- asking the testator’s family and friends;
- making enquiries with the deceased’s solicitors (or independent will writers, if appropriate) and checking if they left any documents with the bank for safekeeping;
- asking The National Will Register to carryout is known as a a Certainty Will Search.