PAUL makes a will, appointing his best friend and business colleague, Michael as his executor. Paul appoints his brother David as his back-up executor.

Paul leaves the whole of his estate to his wife and children.

When Paul passes-away, Michael obtains a grant of probate and begins performing his executorial duties and administering Paul’s estate.

Two years later, Michael resigns from his senior management role, for health reasons.

Michael feels that now that he has effectively retired, he no longer wishes to act as Paul’s executor, despite the fact that Paul’s estate is yet to be finalised.

Michael talks to a solicitor about renouncing probate and appointing David to act as replacement executor.

The solicitor advises Michael that he cannot simply pass the position on to David and that it will be necessary in the circumstances, to ask the Court to formally revoke the original grant of probate and make a new grant in favour of David.

Paul’s family signs formal consents and an application is filed in the Supreme Court of New South Wales, together with supporting affidavits.

The Court rules that the original probate parchment is to be delivered to the Court, the original grant be revoked and that “letters of administration with the will annexed” be granted to David.

Whilst the process was ultimately successful, it was costly and resulted in further delays.

As part of proper estate planning, it is important to nominate appropriate executors who will perform their role diligently and be willing to take-on a role that in some circumstances can take several years to complete.

It is also important to nominate appropriate backup executors.

If you are nominated as an executor, it is important to understand that you should not seek a grant of probate unless you are confident that you will be able to fulfil your obligations, as you cannot easily resign from the role.

Email Manny Wood, Principal Solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.

By Manny WOOD, Solicitor