Renouncing Probate & Intermeddling

Renouncing Probate 

• Sometimes it is sensible for an executor to decline to take on the role even though they have been named in the will.

• The most common reason is in relation to those wills where a parent has appointed all of their children as executors, but some of them live interstate or overseas.

• It is not too difficult for a solicitor to act in an estate where one or more executors are outside New South Wales, but it simply slows down the process, there is a risk that original documents will get lost in the post and it adds a bit to the legal costs of the estate. 

Intermeddling 

• Nobody is allowed to deal with the deceased person’s assets before probate has been granted and then it is only the executor.

• The only exception is that banks will allow access to the deceased’s bank accounts to pay funeral expenses and sometimes the Court’s filing fee.

• Immediately on a person’s death their assets notionally vest with the NSW Trustee and Guardian.

• As soon as probate is granted to the executor the assets retrospectively vest in the executor.

• If anyone, including the executor, transfers, disposes of or otherwise deals with the deceased assets prior to the grant of probate then they are said to have “intermeddled” and they will be personally responsible for any expenses incurred or any losses.

• If an executor allows another person to intermeddle then the executor will also be personally liable.

As executor it is most important that you inform anyone who held the deceased person’s power of attorney that the power of attorney came to an end immediately on the death of the deceased.