Generally, the executor is named in the Will.
This person may act as the executor, but is not obligated to.
Someone who is named as an executor in a will may decline to take on the role by “renouncing” the appointment. This is not uncommon for executors who are not able to act – because of illness or infirmity or distance or simple lack of desire to assume the responsibility and demands of acting as executor.
You may only renounce if you do not fulfill any of the functions of an executor. You cannot start the job, and then renounce.
Renunciation is quite straightforward.
Someone who has begun acting as an executor may not renounce, but they may resign. A resigning executor must apply to the Court to be released from their duties – and normally this requires submitting full estate accounts (see passing of accounts) even if the executor only acted briefly.
Application and Appointment
An executor is appointed by the Will and takes their power pursuant to the terms of the Will. The appointment is ratified by the Court after receipt and approval of an application for appointment of estate trustee with a will filed by the Executor. The following rules apply to these applications:
Notice – serve on all beneficiaries
The prospective estate trustee must serve on each beneficiary of the will with a) a copy of the notice of application for appointment (Form 74.7), and b) a copy of the relevant portions of the Will.
Children – notice
If any of the beneficiaries are children, the applicant must serve notice on the both the child’s parent or guardian and on the Children’s Lawyer.
Incompetent people – notice
If any of the beneficiaries are mentally incompetent, the applicant must serve notice on either the appropriate guardian, attorney, or the Public Guardian & Trustee.
The executor must complete, swear and sign (thus before a commissioner for oaths or notary), the application for appointment as estate trustee with a will (Form 74.4) with information about the estate of the deceased.
Once the application is complete the following must be filed in the appropriate Court registry (in the county where the deceased resided or had assets):
- The complete application, properly sworn;
- The original will and affidavit of execution, attached as an exhibit to the application;
- The affidavit of service of the application, with a copy of the notice of application attached as an exhibit, properly sworn (see notice, above);
- a cheque payable to the Minister of Finance for the amount of the calculated Estate Administration Tax; and
- a draft Certificate of Appointment of Estate Trustee with a Will (Form 74.13)