It's common for people to appoint more than one executor in their Wills to administer their estate when they die - particularly where adult children are concerned, usually so they all have a say in how things are handled. This is seen by many parents as the fairest approach - even if there are tensions or fractured relationships amongst siblings. We hear time and time again that 'they'll have to sort it out'. Surely the kids will be united in their grief and avoid arguments? Unfortunately, this isn't always the case and we have seen a number of cases where executors (whether siblings or not) disagree.
When conflict arises between executors, it usually results in delays in the administration process, increased costs and stress to all interested parties. So what can we do as advisors to help guide our clients on who the appropriate people are to appoint and hopefully remove or minimise the potential for conflict?
Below are some of the issues Coleman Greig believe are important to consider where multiple executors are proposed:
- If one of the proposed executors is the surviving spouse, is the spouse likely to be supported by the other executors or is the spouse more likely to resent the perceived invasion into his/her affairs by a co-executor? Blended families are a classic example - conflict often arises where the second spouse and a child of the will-maker are both appointed as co-executors.
- Who are the beneficiaries of the estate? Is there likely to be conflict between the executors and the beneficiaries? Are the proposed executors suitable to resolve or contain conflict?
- Are the executors own interests likely to conflict with the interests of the beneficiaries? There could be a conflict of interest if an executor is a debtor or creditor of the estate. If so, consider the appointment of an independent co-executor such as the will-maker's accountant (bear in mind that professional executors will charge for their services and non-beneficiary executors [whether professionals or not] are likely to claim commission).
- If the estate is complex - consider appointing executors with different skills (e.g. financial or legal skills).
- Is there is a likelihood of the Will being challenged? If so, would the proposed executors be suitable to handle this? It is an executor's duty to uphold the terms of the Will, so consider if they are too emotionally involved or conflicted to be able to act impartially.
- What is the history of the relationship between the co-executors? Is there a real chance that conflict would arise between them? If so, consider giving one of the executors a casting vote to break an impasse if a dispute arises. This can be one way of getting the administration back on track when a deadlock arises. Failing that, the executors might have to seek directions by the Court or someone can apply to have a co-executor discharged or removed.
Examples of common disputes are:
- disagreement over which solicitor to appoint in handling the probate application;
- disagreement over the value of assets in the preparation of the inventory of property;
- allegations that a co-executor has misappropriated funds under a power of attorney during the will-maker's lifetime;
- disagreement over which real estate agent should be appointed to list a property for sale;
- disagreement where a co-executor intends to pay out a debt from the estate (for instance, a debt owed to that executor) against the wishes of co-executors;
- commission applications by one or more but not all of the executors;
- conflict between executors as to the sale or transfer of assets in specie;
- differences in opinion about which assets should be appropriated to which beneficiaries - and the list goes on...
Administering an estate can be stressful at the best of times. As an advisor, if you're asked by a client to be an executor, before you agree to take on the responsibility you must make sure that you properly inform yourself about the family dynamics and find out what you can about your co-executors' skills etc. Encourage your client to keep his/her important papers in a safe place where they can be easily accessed by the appropriate people when the time comes.
If there is likely to be conflict between co-executors, consider asking your client to ensure that the Will gives you a casting vote in the event of a deadlock between executors. Ensure that the Will is drafted by a solicitor experienced in estate planning. Among other things, this ensures that the Will contains an appropriate charging clause so that your fees are covered and also contains a clause which gives you the ability to claim commission for your 'pains and trouble'.
Once a person passes, if there are early signs of conflict amongst the executors and/or beneficiaries, an executor can always renounce his/her role but only before he/she has 'intermeddled' in the estate (before taking on some of the executorial duties like liaising with banks, solicitors, etc.).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.