What is an “instituted executor” and a “substitute executor”?

The term “instituted executor” refers to a person who is the testator’s first choice of executor (or executors) under their Will.

A “substitute executor” (also known as an “alternate executor”) is the testator’s next choice of executor (or executors) under their Will, in the event that the instituted executor resigns, loses capacity or dies, and is therefore unable to fulfil this role. It is recommended to appoint a “substitute executor” to address the possibility of the instituted executor not being able to act in this role due to their resignation, incapacity, or death.

It is possible to appoint more than one person to be your executor (“co-executors”) however, conflicts may arise between the co-executors which could cause a delay in the progress of the administration of the estate.

Due to the potential for conflicts to occur between co-executors, it is worth considering only appointing one person to act as your executor. For example, you may appoint Person A to be your instituted executor, Person B to be your substitute executor if Person A is unable or unwilling to act in this role, and Person C to be your next substitute executor, if both Person A and Person B are unable or unwilling to act in this role.

I have been appointed as an executor under a Will, but I do not wish to take on this role. Can I resign from this role?

If you have been appointed as an executor under a Will but you do not wish to undertake this role, then you have the option to resign as an executor. To do this, you are required to sign a Court document called a “Renunciation of Probate” which can be filed with the application for a Grant of Probate with the Supreme Court of New South Wales.

If the Will appoints another instituted executor(s), then the remaining executor(s) will act in this role.

If the Will doesn’t appoint another instituted executor, or if there are no more remaining instituted executors, and the Will appoints a substitute executor, then the substitute executor will take over the responsibility of this role in the place of the instituted executor.

If the Will does not appoint a substitute executor, or there are no more remaining substitute executors, then the appropriate person applies for different legal document called a “Grant of Letters of Administration with the Will Annexed”.

Usually, a major beneficiary will apply for a Grant of Letters of Administration with the Will Annexed. Alternatively, a major creditor can apply, or the Supreme Court of New South Wales may appoint an executor. If no one is eligible or chooses to apply, then the New South Wales Trustee and Guardian will be obliged to apply for the Grant.

Besides the Supreme Court of New South Wales, you are also required to notify the other executor(s) of the Will, so that they are made aware of your renunciation, and can commence the application for a Grant of Probate with the Supreme Court of New South Wales, where they will file your signed “Renunciation of Probate” as part of the Probate application. It is also recommended to notify the beneficiaries as well, so that they are kept informed of the progress of the administration of the estate.

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