The unwilling executor

An executor named in a Will does not have to apply for a grant of probate. An executor named in the will of a deceased person may renounce his or her executorship of the deceased’s will. Renunciation of an executorship is made in writing prior to a grant of probate to the executor.

In some jurisdictions this may occur regardless of whether he or she has “intermeddled” in the administration of the estate, so long as the executor renounces the executorship before the Court grants it to him or her. “Intermeddling” is a term used to describe the actions of an executor who acts without a grant in the administration of an estate.

Courts do not apply a strict test but rather look whether the actions of the intermeddler constitute an intention to accept, acceptance of the office of executor, or both. However Courts have decided that certain acts by a named executor do not constitute intermeddling, these include advertising an intention to apply for probate, making funeral arrangements, or preparing a property to make it ready for sale, prior to obtaining probate.

It should be noted that the actions taken before probate that do not amount to intermeddling make a named executor liable to creditors or beneficiaries of the estate.

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