Renouncing Executership

NewClareman

If a named executer carries out an action, specified in a valid will as an executers responsibility, does this limit the ability of said person to renounce executership?
For example, if a will states that "my (named) executers shall organise my funeral and all activities relating to my demise". If one of the named executers then organises the funeral are they now prohibited from renouncing executership?

Claw Hammer

https://www.boards.ie/discussion/2058411913/renouncing-executership

It sounds a peculiar thing to do. If someone is minded not to act as an executor, they should tell the testator before she dies so that the can appoint another executor.

NewClareman

https://www.boards.ie/discussion/comment/123493585#Comment_123493585

Of course that particular example would be peculiar, but what I am really interested in is the scope of what is/could be considered intermeddling. Depending on the estate, the role of executer could be demanding and there could be any number of valid reasons why someone could decide to reject the role. The question then arises as to whether someone could inadvertently commit themselves to the role and typical examples of how this might happen.
Another example would be be that the nominated executer had no knowledge of the size/complexity of an estate and, having discovered this, did not want to proceed as executer. Would reading the will, and assessing the scope of the work, be considered intermeddling?

Peregrinus

The executor named in the will can decline to act, in which case some other person — usually another beneficiary with an interest in getting the estate administered — can step up and get what's called a "grant of administration with will annexed". They then become an administrator, not an executor, but it's effectively the same role.

If the nominated executor who declined to accept has already taken some executor-like steps before they decided not to get a gramnt, yes, they are at risk of being accused of intermeddling. But if what they have done was reasonable and proper — like organising the funeral — its very, very unlikely that they'll actually be found to have any liability.

If you think about it, organising a funeral is something that's almost invariably done before any grant of probate or grant of administration has been obtained, and it's often done by people who aren't, in fact, the nominated executor or who don't subsequently go on to get a grant as administrator. But it's vanishingly rare for this to become an issue in the administration of the estate.

NewClareman

@https://www.boards.ie/profile/Peregrinus I have been an executer and administrator, on different estates. I have also organised funerals of relatives, without any consideration of wills or executers. I am therefore au fait with most of the procedures of estate administration. However, I came across a case of potential intermeddling recently and this added another level of complexity that I had never considered. This set me thinking about this whole area as the definition and scope appears undefined.
For example, what if I discovered, following the decease of the testator, that the estate where I was named executer was extremely difficult and complex. I now wanted to renounce the role, but some implicated parties contested my decision. If the deceased will stated that only the executer (i.e. me) could organise the funeral. By my organising that funeral would I then have been unable to renounce the role, due to intermeddling?

Peregrinus

Intermeddling with the estate can make subsequently renouncing the executor's rule problematic, but it doesn't necessarily make it imposssible. If no-one else wants to take on the role of administrator then the matter may end up in court, with the beneficiaries arguing that, because you have intermeddled, you should be obliged to continue to deal with the estate.

But the courts are reluctant to appoint someone as executor who doesn't want to do the job because, obviously, that increases the risk that the job will not be done well, and/or that disputes will arise about how the job is being done. So they'll ask themselves whether the specific ways in which you have intermeddled really do make it problematic for someone else now to step in as administrator..

If all you have done is to organise the funeral and this is regarded as intermeddling only because, bizarrely, the will stipulates that only the executor can organise the funeral, that looks like pretty marginal stuff. I think a court would be very slow to conclude that that degree of intermeddling presents any real obstacle to someone else taking on the role of administrator and doing the meat of the job, which is getting in the deceased's assets, discharging the deceased's liablities and distributing what remains to those entitled.

There's a lot of background to your query that you're not stating (possibly for good reasons). Why were you selected as executor? What was your relationship to the deceased — are you a family member, or a professional who was to execute the estate for a fee? Are you a beneficiary of the estate? What is the nature of the difficulty/complexity that makes you not want to fill the role? Why are the (other) beneficiaries so keen for you to administer the estate, when you don't want to? Why are none of them willing to take on the administrator's role?

I'm not inviting you to give all this information in a public forum. I'm just pointing out that in a real live case where people were trying to compel you to act as administrator all these questions would be answered in the court proceedings and the answers would obviously have some bearing on what the court ultimately decided.

NewClareman

@https://www.boards.ie/profile/Peregrinus thanks for taking the time for your detailed reply.

You have confirmed my own view that, in similar circumstances to those I outlined, there is a real risk of the dispute ending up in court. How would that dispute be founded where the assets of the estate were fixed, and subject to contention? This should give pause for thought to any lay person agreeing to be executer of an estate,where complications might reasonably arise. It's all fine, until it isn't.

In my own experience as executer, complexity arose due to the size of the estate, the different forms of assets, and the number of interested parties with potential claims on those assets. Even with the assistance of a committed and competent solicitor, it was an onerous task. To my knowledge, I am currently not listed as executer of any estate, thankfully.

Lenar3556

https://www.boards.ie/discussion/comment/123500547#Comment_123500547

In most cases, and particularly large or complex estates, the executor will appoint a firm of solicitors who are happy to handle the full management and distribution of an estate on behalf of an executor. It may take time, and expense, but in practical terms they will undertake all of the work required - so really it shouldn’t be an onerous task on an executor.

NewClareman

https://www.boards.ie/discussion/comment/123500900#Comment_123500900

Remember, the executor has ultimate legal responsibility for estate management, regardless of whom they may choose to act as their agents. I agree that it shouldn't be an onerous task, but take it from me it most certainly can be. Neither should it be taken for granted that every firm has the necessary expertise, or indeed commitment, to deal with all of the issues that can arise with complex estates. It is one reason why probate can take years.

Peregrinus

You have confirmed my own view that, in similar circumstances to those I outlined, there is a real risk of the dispute ending up in court. How would that dispute be founded where the assets of the estate were fixed, and subject to contention? This should give pause for thought to any lay person agreeing to be executer of an estate,where complications might reasonably arise. It's all fine, until it isn't.

Obviously, if someone asks you if they can nominate you as executor in their will, you shouldn't agree unless you intend to do the job. It can be difficult to ask them not to nominate you, but in the long run it causes much less grief than letting them nominate you and then, after they have died, saying you don't want to to it. Having agreed to do it, you do I think have a moral obligation to try your best.

The estate may be complex and messy, but you don't have to do it alone. An executor can always retain solicitors to act for them, and can pay the solicitors out of the assets of the estate.

But if you really feel you can't do it, then the earlier you say so the better. And you should certainly say so before applying for a grant of probate.

The first people you should tell are those who would be most likely to act as administrator, if you don't act as executor. That's whoever has most to gain from the administration of the estate — the principal beneficiaries. If you're not going to do the job, one or more of them will have to do it in your stead and, as they have an interest in the job getting done, it makes much more sense for them to get on and apply for a grant of administration themselvs than to launch High Court proceedings seeking to compel you to do it.

If you have "intermeddled" with the affairs of the estate before deciding not to act the main risk, realistically speaking, is not a court would compel you to act; this is vanishingly unlikely. It is that a court might make you personally liable for any loss which resulted from your intermeddling. Intermeddling doesn't necessarily cause any loss; if all you've done is, e.g., pay the undertaker's bill the estate is at no loss; the estate would have to pay the undertaker's bill no matter who was appointed to administer it.

If, one way or another, a dispute about the administration of the estate does end up in the High Court, some or all of the costs of that are normally payable out of the estate. If the estate consists largely of fixed assets and doesn't have enough cash, then fixed assets must be sold to generate enough cash to pay these costs — the costs of the administration are a first charge on the estate. This means that beneficiaries who have been left fixed assets may not get them; if they have to be sold to pay estate administration costs then the beneficiaries will only get so much of the sale proceeds as remains after the costs have been paid. (A consideration which should give the beneficiaries a powerful motive not to launch court proceedings seeking to compel a reluctant executor to act, and to just get on and do the job themselves.)

Deeec

Unfortunately being an executor can be an onerous, time consuming job. In my case I was an executor of an estate but was given no information prior to death. I had to piece together what the estate was made up of. I had to trace what property they owned ( which was a huge task), trace bank accounts etc as there were very little records in the deceased persons home. I also had to clear out their home which was very difficult. I had to give a huge amount of personal time to this. We engaged solicitors aswell but I needed to supply all information to them. The estate was eventually administered but even now I'm not sure that all assets were included. I wasn't a beneficiary of the estate so ended up with nothing for all my time and trouble.

I would be very hesitant to do this role again if the deceased did not include a list of their assets.

In my opinion a person should inform the executor of their estate of their intention to name them as executor and give them a right to refuse. Also they should ensure they give details of their estate to their intended executor so they don't have to do a Sherlock Holmes job to find the info.

Also make sure that your executor at least gets mentioned in your will and gets some payment/asset for their trouble. Don't give them nothing!

Peregrinus

You shouldn't, I think, take on the job of executor unless (a) you are a professional and you are getting paid a professional rate to do to it, or (b) you are a close family member and a signficant beneficiary of the estate.

It's obviously good practice for the testator to ask before he nominates someone, but he can't be forced to. And it's obviously good practice for people to keep their affairs in order and well-documented (and not just to make things easy for on your death) but, again, they can't be forced to.

It's not really a matter of a one-off briefing at the time someone agrees to be executor. Years or decades may pass before the testator dies; the executor needs up-to-date information on the affairs of the deceased.