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Can I refuse to be the Executor of a Will?

Can I refuse to be the Executor of a Will?

The executor of a will is required to carry out the wishes of the deceased. This article determines whether you can refuse the role of an executor.

6th July 2020
Reading Time: 2 minutes

Being the executor of someone’s estate can be an overwhelming task without the proper legal understanding or financial training. There are strict steps which must be followed as an executor. It is a time consuming role and the executor must consider whether they are the right person for the role. However, if an individual chooses not to take on the role, there are certain steps to get out of it all together. In this article, we’ll explain whether you can refuse to be the executor of a will and the legal process you’ll have to follow.

What is a Will? 

A Will is a legal document which establishes how your assets including property and money will be dealt with after you pass away. A Will sets out how any specific assets will be given to your beneficiaries. Furthermore, the Will decides who the executor will be as well as any further instructions you may have. 

What is an Executor?

The executor is imperative to a will. The executor is nominated by the deceased. They are the person who carries out the instructions left by the deceased as stated in the Will. Additionally, the executor must follow the instructions and terms set out in the will when assigning the assets of the deceased. Moreover, they must ensure that they are following the laws that govern the administration of the deceased’s assets. 

The Role of a Executor

The executor may benefit from some basic knowledge of taw, tax and also accounting to aid in their role as the executor. It is common for many individuals to be unsure of what is expected of them when they are nominated as the executor of a Will. This can lead to mistakes being made with the executor being held liable. As the executor you will have many duties. These duties include:

  • Firstly, locating the Will
  • Paying off debts.
  • Establishing and managing any long term trusts.
  • Apply for a grant of probate from the Supreme Court, this legally confirms and authorises the executor to administer the deceased’s estate. 
  • Manage the deceased’s accounts and lodge tax returns. 
  • Determining the beneficiaries and distributing the assets to them in accordance to the will. 

Can I refuse the role? 

The executor of a will is a very significant task and can be overwhelming for some. It can be a lengthy task with a minimum finalising time of six months to a year. Additionally, issues may arise when locating beneficiaries, dealing with tax and any challenges to the will. However, during a time of grieving, an individual may not want the big task of the executor.

An appointed executor is under no legal obligation to accept the position or perform the role. Accordingly, it is possible to refuse to be the executor. If you feel that you are unable to perform the duties of the executor you must renounce probate. By renouncing probate you are transferring the executor role to a third party representative or a trustee company such as the NSW Trustee & Guardian. If probate has already been granted you may still refuse the role, however, it is a more complicated process. Under the Probate and Administration Act 1898 (NSW) you will be able to appoint a replacement executor. Other Australian States and Territories have similar rules in their equivalent legislation.

In conclusion, you can refuse to be the executor to a will. If you have any other questions ask an estate lawyer today.

Author
Liesel Millard

Liesel is a legal tech intern at Lawpath, working as part of the Content Team. She is currently in her second year of a combined Bachelor of Business and Bachelor of Laws degree at the University of Technology Sydney. She is interested in areas of sports, corporate and intellectual property law.