Appointing an executor - is it binding?

Do your executors have to act?

Your executors are not under any obligation to take on the role. Even if you appoint only one executor, they will still have the option to stand down if they are unwilling or unable to fulfil their duties when the time comes. If this is the case, it will become necessary for someone else to apply to the court as an administrator.

There are any number of reasons why an appointed executor might not wish to act. For example:

  • they have simply changed their mind;
  • they didn’t know they had been appointed in the will (that happens!);
  • they have moved away, perhaps overseas;
  • they have become ill or disabled;
  • they now have responsibilities as a carer for someone who is ill or disabled; or
  • they were appointed in a professional capacity, such as a solicitor, but have retired from practice.

So just because the will names a person as executor, it does not mean that that person has to act as an executor. If they are choosing to step down, they can renounce the role.

To do so they will need to complete a ‘form of renunciation’, available from the Probate Registry (which is responsible for issuing grants of probate and grants of letters of administration). 

In the event that your executor chooses to renounce their position, renunciation takes effect immediately. Renunciation does not grant them the right to appoint another person in their place. 

The executor is not able to act

Obviously there may be circumstances where an executor is not able to act:

  • The named executor died before the testator, but the testator did not amend their will.
  • They were the spouse or civil partner of the testator when the will was drafted, but the marriage or partnership has since been dissolved or annulled (this automatically revokes the appointment).
  • They do not have the mental capacity to act.
  • Their right to act has been taken away by the court (for example if they have disappeared, or are serving a prison sentence).

If you appointed a sole executor and they die before you without you appointing someone else in their place, your estate will be administered by the person first entitled under the rules of intestacy. This does not mean that your will is invalid, or that you will be deemed to have died intestate, just that the person who will act as your personal representative (in effect your executor) may not be the person you would have chosen.

If a person no longer has mental capacity to act as executor when you die, then the other executors (if any) can act; if there are no other executors, then the law sets out how someone else would be able to apply for probate. 

How to ensure you get the executors you want

You cannot guarantee when you make your will that the people you nominate as executors will be able and available to be your executors when you die.

Obviously it is a good idea for you to change your will if you discover that one of your executors does not wish to act or is unable to do so. But sometimes you may not be aware until it is too late. So it’s clearly a good idea to:

  • appoint more than one executor;
  • make sure they know you want to appoint them as executor;
  • check every so often that they are still willing and able to act; and
  • appoint substitute executors.