Appointment of Executors.

This may be a surprise but a Will does not need to appoint executors. Without such an appointment the duty to lawfully deal with an estate falls to certain categories of beneficiaries. Whilst still valid, the failure to appoint an executor does make matters unnecessarily complicated.

Choosing an executor can feature a number of complex considerations. However, making a difficult decision now is far better than making matters complicated for those left upon your death.

People often make a Will when they are likely to make further ones in years to come – such as a couple with a young family. In such circumstances they would not be appointing their young children but their subsequent Wills may see the appointment of their adult children.

Another frequent choice is the appointment of a spouse alongside a friend – often someone with some professional experience, such as a solicitor or accountant. In such cases it is always important to make sure the terms of the appointment are clear and that friend agrees to the appointment. I have seen Wills where a friend is appointed but they have acted on the basis of a professional appointment and have charged the estate for their services.

Whilst this is acceptable, it is not something that is necessarily anticipated by the testator – who perhaps assumed their friend would do it as a ‘favour’. However, the role of executor, particularly when there are multiple assets, inheritance tax and family dynamics all at play can often be quite a tricky task and not something a friend would necessarily have envisaged dealing with – and certainly not for free.

I have represented executors who were involved in their friend’s estate several years after the person died. This included attending Court regularly whilst in their late 80’s – not a situation anyone would appreciate finding themselves in – particularly in their later years.

Whilst long running estate administrations are rare, they do come up and in many situations it may have been quite obvious to the deceased that the way they were leaving things would create such a potential. This is not a question of the testator being to blame – often through no fault of their own the way they own assets is complicated or the relationship between the beneficiaries is such that there was always going to be some level of challenge.

When I am advising a client regarding their choice of executors I look at what the executor is likely to have to contend with. In most cases, for instance a married couple with children, the distribution of the estate is likely to be quite straightforward and as such the spouse or adult children will probably be able to manage things with minimal issues. However, if it is a blended family then the appointment of the spouse may be something that causes a problem for the adult children who are not related to this person. They may not feel that their step parent is the right person to deal with their parent’s affairs.

Another question is how many executors to appoint. Whilst there is no limit, it is sensible to be realistic. Every executor can act jointly and separately but in practice decisions should be made together – or for there to be an agreement that one person takes the lead. If there is no agreement in place then this is a fast route to a dispute and the possibility of having to get the Court involved to appoint a completely independent executor.

Practically it is also worth bearing in mind that all the executors will need to sign certain paperwork. Multiple executors inevitably makes this complicated, as does the choice of executors who live abroad.

Conclusion

There is no ideal executor – every estate is different. However, when making your choice it is worth bearing in mind:

  • Will your choice of executors work well together?
  • Will your executor understand your estate? Will they require specialist advice and assistance? Will they know where to get that help?
  • Will your executor be emotionally and physically able to deal with things? Will they be grieving? Will they be elderly? Will they be upset by the terms of your Will?
  • Is your executor in the same country as your estate? If your estate is based in the UK then the appointment of an executor who lives abroad will often cause considerable delay and expense to the process.
  • Is your executor trustworthy? It seems unlikely anyone would choose someone they did not trust however becoming an executor provides a person with the full legal authority to deal with an estate as if it was their own. Often this involves significant sums of money being made available to them. There is limited oversight – other than from the other executors and the beneficiaries expecting their inheritance.
  • Is your executor up to the task of dealing with a dispute? If you know your beneficiaries are going to be disappointed or kick up a fuss then you need to be confident that your choice will be able to deal with this and continue to act fairly – even in the face of unpleasantness.

If you cannot answer any of the above with confidence then I would strongly advise that you not only ensure your Will is professionally drafted but that you give serious consideration to the appointment of a professional executor, such as Mundays Trustee Services Limited.

Equally, if you have found yourself the executor in a complicated estate then you are entitled to seek professional assistance – don’t struggle along – give Mundays a call.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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