How to Give Up as Executor (renounce – or not?) Power Reserved?
Do I have to act as Executor if appointed in a Will? If you have been made executor in a Will and don’t want the responsibility, then you do not have to act. You can give up your right to act as executor by signing a “deed of renunciation”, but only before you take any action (intermeddle is the jargon) in dealing with the estate. The worst of all worlds is to THINK you have renounced, so allow someone else to take over who is careless or dishonest – and you could end up paying for their misdeeds because you were legally unable to renounce and remain responsible whether you like it or not!! Do not be bullied into renouncing.
PLEASE, PLEASE read this page in full before giving up!
Probate Quotes. Probate Disputes. Duties of Executors.
The preferred family executor/s are usually the busiest ones, unfortunately, or if the Will has not been regularly reviewed (as all Wills should be), then – like one I had the other day – the lady’s 92-year-old mother was the executor. Adult children may be long retired or even in care and still be executors. Wills, etc, should be reviewed at least every 3 years – even if no obvious changes have taken place, the Law or Tax may have upset your plans.
A Better Option to Giving Up? Power Reserved
Perhaps rather than renouncing via a deed of renunciation, it would be safer to delegate all or part of the executor’s work to a firm (we could suggest one we have good experience with). The estate can pay: at least that way, you retain control but don’t have to do the work, worry, or take the flak – just blame the professionals! Just leave it to me. I aim to find economical professional help, and if the saving isn’t at least ONE THIRD, I will apologise! (If you want to eliminate an expensive professional as executor, go here.) If there IS going to be a dispute, then the guidance we offer in terms of who to use may well be different. I would always recommend professional help where there may be family squabbles or other probate disputes. But no need to pay through the nose for it. Better for the estate to pay the fees than for the family to be blown apart – often permanently – by family executors who – despite doing things correctly – are blamed by family members who don’t like the (correct) result. Let them blame the professionals!
The alternative to renouncing executorship is to reserve your power to act as executor, which is usually the wisest course short of delegating to a professional with our help. Please do read all of this page before deciding. You do need to be a little careful with “power reserved”, as there is no formal notification procedure. Unscrupulous (or thoughtful) folk may designate you as having reserved your powers without your knowledge. Clearly, you should have to agree, and I would recommend anyone acting always get a signed note confirming the non-acting executors are happy with the situation.In my opinion, this is a big loophole in the law that needs fixing and aids executors who are less than honourable (and careless) with the potential to commit fraud, which remains pretty easy under the current system.
What is Power Reserved? Retaining the right to become involved later.
Simply, you don’t act as executor initially, but you reserve the right to change your mind and get more involved should you wish to or should circumstances make that the right thing to do. If more than one executor is named in the Will, you can choose not to apply now but reserve the right to apply later. This is known as holding ‘power reserved’.This is supposed to be done in writing to the remaining executors, but often is not, leaving both sides in a potentially difficult situation: the acting executor could be accused of acting dishonestly, even if the other executor did agree to reserve power. The non-acting executor could appear to be acting, have no proof of the reservation and end up being sued for the misdeeds of the acting executor. Hardly a sensible situation.Tell the person making the probate application that you wish to hold power reserved. You need to do this in writing, and I would send it recorded delivery so you have evidence that you do not intend to act initially but reserve the right to do so later. Email might do, but there could be arguments over delivery unless they reply. This should protect you if the remaining executor makes a mess of it or does not act with integrity. Normally, the named executors would be jointly liable if anything goes wrong, and you don’t want to get in trouble if things you were not involved in go wrong. But you do want to be able to step in and sort them out or appoint a professional to do so. If you renounce, these options are no longer available to you: you have no right to act. Hence, my general suggestion of retaining power reserved.Sadly, this is a much-abused process, where one executor doesn’t even ask others whether or not they wish to act as joint executors so they can keep an eye on things. Parliament should stop this abuse and insist that the executor reserving their power completes and signs a form which goes in with the probate application.Powers reserved is much better than renunciation, as if things go wrong, or the executor dies, goes off the rails or is ill, you can get involved and either sort things out or get professional help. Professional help may be best if you feel that anything untoward may have happened that you could be blamed for.As an executor who is not acting, you could, with the agreement of the other executors, still, be involved in the decision-making process (as an adviser with no actual rights) during the administration of the estate, and this may, in any event, be appropriate if he or she is also a beneficiary. But beware of intermeddling – if you have a vote or assert your rights – a general chat is probably fine. Knowing the limit before you are intermeddling is the issue. So it is – with care – possible to be relieved of the burden of dealing with much of the paperwork but still be comfortable knowing that you could subsequently reverse the situation and prove the Will, should it prove necessary or appropriate.The alternative is renunciation.
What is a Deed of Renunciation as Executor?
If you renounce (that’s the jargon for giving it up), that is it. There is no way back (after it has been submitted to the Probate Registry) should you later feel it necessary or convenient. That can be unfortunate, as you may discover. In more detail:If you don’t want the job of executor, it just may be appropriate to give up quickly or make it clear that you wish for powers to be reserved whilst other executors do the job. If you act as executor in any way, that is called intermeddling, and you have automatically accepted liability for any mistakes you or the other executors may make in dealing with the person’s affairs, and you are stuck with the job. You can’t renounce (give up) the role of executor nor reserve your right to act. You can only give up your rights entirely under this procedure, and it is too late if you have interfered (“intermeddled”). If that is not your wish, once again, it is possible to defer to other executors and allow them to proceed but reserve your own right to become an active executor (“power reserved”). Once the deed of renunciation has been signed, it takes effect, but you can withdraw it before the Probate Registry has received it. Afterwards, you can’t change your mind without special Court permission. So, to maintain control, you could consider delegating the hard work to one of the sensibly costed firms we deal with: you remain in charge, but the professionals are responsible for carrying out the probate correctly.Sometimes, individuals who are not executors nor the appropriate beneficiaries perform some of the executors’ duties and are considered to have intermeddled. If you have handled the deceased person’s assets or held yourself out as an executor, perhaps by collecting an asset or paying a debt, you could be considered to have “intermeddled.” It could also mean you have dealt with handing over an asset to a beneficiary or have been running the deceased’s business after their death. If you find yourself in this situation, contact us and we’ll find you some advice.Certain acts are not regarded as intermeddling, such as arranging a funeral, securing goods or moving assets to a place of safety. By preserving the estate assets initially, you are not considered to be assuming the role of executor.
How do I obtain a ‘deed of renunciation’?
There is no need to pay a professional to renounce your duties as executor; just complete the form and follow the instructions here, but please read the rest of this page so that you understand the consequences. We can just help you get the job done for you by an economical probate practice if you prefer, which may be the only alternative if you have already done anything which could be considered intermeddling. If you have, you are stuck with the job, so call us today!
An alternative to giving up entirely is to appoint someone else to do the work for you, but bear in mind that they will be acting with your full authority: there are two forms, the PA11 if there is a Will or the PA12 if there is no Will. I nearly said NO VALID Will, but that opens up another whole can of worms!
Common reasons for giving up as executor:
- Out of grief – things will get better; it is better to let decisions wait a short while so your senses have time to rebalance. But not too long as there are time limits which are strict if Inheritance Tax is payable. Maybe delegate, but retain control so you can get more involved later if you are up to it. The Assisted Probate Service is especially useful there. For many people, getting involved in the paperwork provides a form of closure.
- Being bullied by another executor – some executors think they can do what they like with the estate: that is usually a fraud, and the Police won’t be interested, so if you feel you are being pushed into signing a deed of renunciation, it may be better to delegate your powers to a professional rather than take the risk of things going wrong.
- It is too much work, and I don’t have the time – if other executors are capable and trustworthy, that is fine, but consider what would happen if, for health reasons, they were unable to complete the work. That is where an each-way bet – Powers Reserved – can be a real boon. It just means that you are, in effect, not an executor at present but reserve the right to become one should circumstances make it appropriate. For example, the other executor dies, is ill, acts dishonestly, or is just not doing the job. It also means that you could still delegate the role to a professional to ensure things are done properly once you have activated your Powers.
- You don’t have the skills. Maybe you could manage with a little help to keep costs down, but if you can’t, we know lots of firms who won’t overcharge.
- It is too complicated (trusts, Inheritance Tax, Businesses, overseas assets.)
- There are disputes – appointing a professional depersonalises disputes and gives the family more chance of staying a family.
Can I appoint another person to act as Executor?
Giving up as executor through renunciation does not allow you to appoint anyone else in your place. If you wish to do so, you must retain your executorship and (perhaps) delegate the work (we can help find a suitable firm). If the next of kin wants to step in and apply for the Grant of Probate, they can organise the deed of renunciation simultaneously. It is also important to consider whether anyone pressuring you to stand down is doing so for honourable reasons. People get some very funny ideas of their “rights” in probate matters – if there is any doubt, lumber a professional with sorting it out. Too many families never speak again as one party thinks the other has “done them out of their inheritance.” Let a professional take the flak, and keeping the family together would be my advice.
What happens once I give up as executor with a deed of renunciation?
If the Will includes other executors, they can generally apply for probate. However, if there were no others, or they have renounced too, someone must apply to the Court to be appointed administrator. This would usually be the main beneficiary, who can equally delegate the work.
No Will?
An administrator has to be appointed to deal with their estate. The rules of intestacy give an order in which preference is given to family members to take over as administrators. If there is just one person entitled (e.g. spouse or sole surviving child), they may give up their role as administrator. The option to act then passes to the next relative in line. If more than one person is entitled (e.g. two children), they don’t need to formally renounce their role, as the one who wishes to act simply does. The others don’t need to do so, either. Again, if there are any concerns, contact us for an economical professional. Be aware that the age of the natural or adopted children (unless under 18) has no bearing on who should be the administrator in these circumstances – all have equal rights. They could work together.
How to Reverse the Decision to Reserve Powers
In theory, if probate has yet to be applied for, just telling the other executors you wish to act should be sufficient. But if probate has been applied for, a separate application to the Probate Registry, leading to a grant of double probate may be required. Thereafter any documentation will need to be signed by all of the executors.
Give up as executor where the testator is still alive.
Generally speaking, this results from a lack of forethought in the choice of executor, or from not reviewing Wills often enough (we suggest no less than every 3 years, though often no change will be needed). If the person is still alive and in possession of their wits, then ask them to get their Will amended by way of a rewrite or a simple codicil to replace you as executor. If they don’t get around to letting you give up as executor, you still have the option of delegating the work to a professional whom the estate will pay. When you are young, your executors may be older than you, but, rather like Merlin, as you get older, your executors (or at least some of them) need to be younger than you by a margin which gets wider as you get older. I appreciate there will be centenarians who could happily cope with the job, but if you are 100, how many do you know who could do so? In my opinion, it is best to have at least one executor well under retirement age.You can still refuse if called on, but it is much better to get such matters organised well in advance. Many Wills are drawn up with older executors, which is fine when you are young but not so good when you are 70+. Why did I say that – takes self out and shoots (as he was born in 1950)!But what happens if the person no longer has “mental capacity“? They can’t amend their Will, but their Deputy or Attorney can ask the Court of Protection to do so, a slow and expensive process, especially if no one has been appointed to look after the person under a Lasting or Enduring Power of Attorney or as a Deputy appointed by the Court of Protection. I suspect that most people would just give up and let the relevant people know that they intend to renounce when the person dies. If they are, for some reason, uncomfortable about doing so at the time, we can always help them pass on the work to a suitable law firm.(If you are looking to get rid of a solicitor as executor, go here.)
*What Does Intermeddling Mean?
Intermeddling means that you have handled the deceased person’s assets or held yourself out in the role of an executor. This could be collecting an asset or paying a debt. It could also mean you have dealt with handing over an asset to a beneficiary or have been running the deceased’s business after their death.Arranging a funeral, moving assets to a place of safety and preserving the estate assets is not generally considered intermeddling, just be careful not to take it too far so you are in effect assuming the role of executor.
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Do I have to be an executor? NO!