Renouncing and power reserved

Executors are appointed to carry out the terms of a will. In other words, they are responsible for the probate process. Administrators are the people responsible if there is no will.

It may be that an executor or administrator is unwilling or unable to act, or they choose not to be involved for practical reasons.

In that case, they may renounce or have power reserved.

Renouncing

Any executor or person entitled to act as an administrator can renounce. This is also known as “renouncing the right to probate”.

Renouncing is achieved by signing a properly-worded “deed of renunciation”. If you are dealing with the probate process without professional assistance, the Probate Service will assist. Alternatively, it can be drafted by a solicitor or other probate professional.

The person renouncing wishes to have no involvement in the probate process. Once the deed has been lodged with the probate registry, they cannot change their mind.

If an executor renounces, the other executors (if any) may continue. If there are no executors left, it falls to a residuary beneficiary to administer the estate.

If there is no will, the rules of intestacy determine who shall act as administrator. See our guide “Intestacy: who are the personal representatives?”. If there is just one person entitled (such as a surviving spouse or civil partner, or a sole surviving child), they may renounce. By doing so, the right to act falls to the next in line.

If there is more than one person entitled, for example if there is no surviving spouse or civil partner but three children, there is no need for any one of those children to renounce. In this situation, the child who wishes to act simply does so, and the others do not need to formally state that they are not involved.

A person may not renounce if they have already taken an active role in the probate process. This is known as “intermeddling with the estate”.

Power reserved

A more flexible way to take a step back from the probate process is to have “power reserved”.

This is an option only available to executors under a will, not administrators under intestacy.

An executor with power reserved will leave the day-to-day running of the probate process to his or her fellow executor(s). However, if needs be, they can step in at a later date, for example if the others become ill, or if problems arise.

An executor with power reserved will not sign the forms or attend the probate registry.

A scenario where power reserved may be appropriate is three executors, all children of the deceased, living in different parts of the country. They agree that only one of them will deal with the estate, the child living closest to the deceased parent’s home. The other two have power reserved.

If you are dealing with the probate process without professional assistance, the probate registry will deal with this for you, based on the information you provide on the Probate Application (PA1) form. If a solicitor or other probate professional is involved, they will draft the appropriate document, known as a “notice to a non-proving executor”.