Renunciation and Nomination of Administration
17 February 2022
From time to time an executor of a will or a person entitled in intestacy may wish to renounce. That is perfectly fine. They may be elderly and not wish to take on the role. There may be other valid reasons. In probate cases, if the executor renounces and there is no other executor, then you are into a will annexed case. In that event, in most cases, the residuary legatees must apply for the grant. On renunciation in intestacy, it is normally the person next entitled who applies.
There is an exception to this rule, which is useful to know. This is where the executor/administrator who is renouncing is also the beneficiary of the entire estate. This would also apply where a residuary beneficiary is entitled to the whole of the estate and they are applying for a will annexed grant. It also applies in intestacy cases.
There is a rule to say that in such cases, the person renouncing may nominate another person to apply for probate/administration for them. However, that person can only be someone who would be entitled to share on intestacy in the estate of the person renouncing.
The rule is set out in Order 79 r 5(12), which states as follows:-
(12) Where a person is entitled to the beneficial interest in the whole estate of a deceased, administration may on the renunciation and nomination of that person be granted to the person, or jointly to the persons, who would be entitled to the estate or to a share in the estate of the person so renouncing if that person had died intestate.
So take the example of Seans will. He appoints his wife Mary as sole executor and beneficiary. The residuary of the estate was a child Patrick in the event of Mary pre-deceasing Sean. Mary has three children, Patrick, Susan and Thomas. Mary can renounce her executorship. In the normal course of events then, Patrick would apply as residuary legatee on a will annexed. However, Mary does have the option of renouncing and appointing Thomas as executor, as Thomas would be the person entitled to share in his mothers estate on intestacy.
Take the example of Susan who has died intestate, survived by her two siblings Agnes and Paula. The rule would not be available in this case as neither Agnes nor Paula are entitled to the entire estate.
Sometimes this route is suggested by the probate office and it is one that comes up from time to time in practice.
Hope this helps and if you have any queries in relation to probate, will drafting or capacity issues, please email me at email@example.com