At times an executor is appointed by a testator in their Will and the executor is ill equipped or unwilling to act as executor. In these circumstances, it is necessary for an executor to formally renounce their role as executor.
Quite often executors are unsure if they can resign as an executor of a Will or how to go about it.
Renouncing an executorship is a formal legal process and involves lodging documents with the Supreme Court of Victoria (or relevant court in other states) after the death of the testator. The documents should be drafted by a lawyer and advice provided to the resigning executor to the overall implications of the resignation to the executor themselves, the estate and the beneficiaries.
When an executor formally renounces their position as the executor of an estate, the Supreme Court of Victoria will be responsible for appointing a replacement. If an alternate executor is appointed under the Will, it falls on the alternate executor to make an application to the Court to be appointed as the executor of the estate in place of the renouncing executor.
If there is no alternate executor appointed in the Will the situation becomes more complicated.
To have a valid Will there must be executors appointed. If all the executors renounce their position as executor(s) then the job ordinarily falls upon the deceased's next of kin to make an application to the Court to be appointed as the administrator of the estate in place of a formal executor, as there is no other executor appointed under the Will.
The above types of application to the Court are complicated, and it is appropriate for any individual wishing to be appointed as the executor/administrator of a deceased estate to seek legal advice prior to filing their application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.