Two Executors in the Will: Can Just One Apply for Probate in NSW?

Introduction

When a will names two executors, the usual position in New South Wales is that both apply for probate jointly. A sole application may still proceed where the other executor has, for example, renounced probate or reserved leave to apply, subject to the requirements in Part 78 Rule 17 of the Supreme Court Rules 1970 (NSW) (‘NSW Supreme Court Rules’).

In such cases, the Supreme Court of NSW may grant probate to one executor while reserving leave for the other to apply later, and wills and estate planning lawyers can advise on this process. This article explains when one executor can apply alone, how reserving leave differs from renunciation, which documents are required and how a co-executor can join later.

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Do All Named Executors Have to Apply for Probate?

The General Rule for Multiple Executors

When a will appoints more than one executor, they usually apply jointly. However, this is common practice rather than a legal requirement because Section 41 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) allows probate to be granted to one or more of them. 

Where only one executor applies, the application must explain why any instituted executor is not joining, and probate and estate administration lawyers can assist with the supporting documents. The wording of the will also matters where substitute executors are named because a substitute executor can apply only when the condition for that substitution has been met.

Exceptions When One Executor Cannot Act

In certain circumstances, one executor may apply without the other. This commonly happens where the other executor has: 

• died;
• renounced probate;
• lost the capacity to manage their affairs;
• moved overseas; or
• cannot be located.

If the other executor has died or renounced, no notice is needed. By contrast, in the other situations, the executor keeps their right to apply, so notice must generally still be served on them.

If they cannot be found, the applying executor can ask the Court for an order for substituted service under Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) (‘Uniform Civil Procedure Rules’). 

Evidence supporting the reason for non-participation may be required. For example, medical evidence may be needed where an executor has lost capacity, while evidence about the executor’s location may be needed where they are overseas or cannot be found.

Ultimately, the application may seek probate for the applying executor while preserving the absent executor’s ability to apply later.

What Does Reserving Leave to Apply Mean?

The Legal Definition of Leave Reservation

As mentioned earlier, Section 41 of the Probate and Administration Act allows the Supreme Court of NSW to grant probate to one or more executors while reserving leave for another executor to apply for probate at a future date. Leave can only be reserved for an executor who has not renounced probate, since renunciation ends their rights under Section 69 of the Probate and Administration Act.

This means the estate can proceed with an initial grant without requiring every named executor to apply at the same time. The non-applying executor’s ability to seek probate later remains available.

Common Scenarios for Leave Reservation

Reserving leave may be appropriate where a co-executor is unable to participate in the initial application but has not renounced probate. Common examples include: 

• the executor is overseas;
• the executor cannot be located; or
• the executor is temporarily unable to apply for medical reasons.

In each case, as noted above, evidence explaining the circumstances may be required.

How Reserving Leave Differs From Renouncing Probate

The Finality of Renunciation

In essence, renouncing probate is a formal refusal to act as executor before a grant is made. An executor may renounce if they have not dealt with estate property, known as intermeddling. Before doing so, the renouncing executor should check the wording of the will, as noted above because another executor or substitute executor may only be entitled to apply in specified circumstances.

Once renunciation is filed, the executor’s right to administer the estate ends. Section 69 of the Probate and Administration Act provides that an executor who renounces loses their right in respect of the executorship. An executor cannot renounce probate after a grant has been made.

The Use of Leave Reservation

By contrast, reserving leave allows an executor to remain entitled to apply for probate later, as explained above. This option may suit an executor who is temporarily unable to participate or is not ready to apply but does not wish to give up the role.

Section 69 of the Probate and Administration Act ends the rights of an executor who renounces. It does not affect an executor who has simply not yet applied, so an executor with leave reserved keeps their right to apply later. 

What Documents Are Needed if One Executor Does Not Apply?

Required Forms & Notices for Leave Reservation

The applying executor or executors must serve notice on the non-joining executor before filing the probate application. The application must include an affidavit of service of notice. In addition, the supporting affidavit should explain why the other executor is not applying, supported by evidence as noted above.

Document Checklist for Renunciation

A renouncing executor must complete Form 123 under the Uniform Civil Procedure Rules, the approved Renunciation of Probate form. The form may be filed before the probate application, although it is usually given to the executor who intends to apply and filed with the application.

The renunciation must be identified in the relevant probate documents, including:

• the qualification in the Notice of Intention to Apply for Probate;
• the Summons;
• the Affidavit of Executor or Applicant; and
• the “Basis of Grant” section of the grant document, Form 112.

Can the Other Executor Join the Administration Later?

The Process for Double Probate

An executor whose leave was reserved can apply for probate after the initial grant, as noted above. In that case, the Supreme Court of New South Wales issues a new grant page, Form 112, which is attached to the front of the original grant, allowing the executor to join the administration without the original grant being replaced.

Everyday Example of Delayed Participation

To illustrate, consider a case where one executor is living overseas when the testator dies. In this scenario, the local executor applies for probate, while the overseas executor is served with notice and has leave reserved to apply later.

Then, after returning to Australia, the overseas executor may apply for double probate and assist with the remaining administration, including distributing estate assets.

Conclusion

One executor can sometimes obtain the initial grant alone where the co-executor has died, renounced probate, or cannot or will not act. As discussed, Section 41 of the Probate and Administration Act permits a grant to one executor while reserving leave for the other, provided that executor has not renounced probate.

The next step is to check the will, serve the required notice on the non-joining executor or obtain a completed Form 123 where renunciation is intended. Contact probate and estate administration lawyers at LawBridge for assistance with the documents and Court requirements, so the application can proceed on a clear and properly supported basis.

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