Renunciation of probate (Form 123)

An executor named in a will who does not want the role can renounce probate before a grant is made, provided they have not dealt with the estate's property (intermeddled), as the Supreme Court of NSW explains. Form 123 is the approved renunciation. It cites Supreme Court Rules 1970 Part 78 r 17(1), which requires that where some but not all named executors have renounced, evidence of each renunciation is furnished and any signed renunciation is filed with the probate application (r 18 does the same where all executors renounce and administration with the will annexed is sought). It was formerly SCR Form 94. The executor declares the will (and any codicils) under which they were appointed, that they have not intermeddled in the estate, and that they renounce all right to probate and to the trusts and powers given to them by the will. The court says an executor cannot renounce once a grant has been made.

When you need it

• You are named as an executor and do not want to act, and no grant has yet been made.
• You have not dealt with the estate's assets.
• Another executor, a substitute executor or a beneficiary is going to apply instead.

1. 1

   Court details and title

   The form is pre-set for the Supreme Court, Equity Division, Probate List. Add the case number if one exists (the online notice of intended application generates it), and the deceased's name and last address.

2. 2

   Filing details and your details

   Filed for is usually the plaintiff or plaintiffs who will apply for the grant. Give your name, address, occupation and the date.

3. 3

   Paragraph 1: your appointment

   State that you are the executor, or one of the executors, appointed by the will of the stated date and any codicils (with their dates), and give the deceased's name, residence and date of death.

4. 4

   Paragraphs 2 and 3: no intermeddling and renunciation

   Confirm you have not intermeddled, and renounce all right to probate of the will and codicils and to the trusts and powers they give you.

5. 5

   Sign before a witness

   Sign the declaration in front of a witness, who also signs.

• The Supreme Court says the registry will accept a renunciation before an application is filed, but generally the renouncing executor gives the form to the person applying and it is filed with the probate application.
• Most uncontested applications for a grant must be made and filed online through the NSW Online Registry. The Supreme Court's probate checklist says to file the original only, without copies.
• The renunciation must also be mentioned in the qualifications of the online notice of intended application, the summons, the applicant's affidavit and the basis of grant.

• Before renouncing, check the will's wording. The Supreme Court warns many wills only let a substitute executor act if the first executor dies, so a renunciation might leave no one able to apply for probate.
• If you might want to act later, consider asking for leave to apply later to be reserved instead of renouncing. The Supreme Court describes both options.
• Do not sign if you have already collected or dealt with estate assets.