“Be Wary Who You Appoint As Your Executors”Published on: 29 March 2018
The role of an executor is an important one; the executor is entrusted by the testator with the administration of their estate, which usually entails collecting in the estate assets, discharging the liabilities, preparing estate accounts and ensuring that the estate is distributed to the beneficiaries in accordance with the terms of the will. However, the role can also include more delicate tasks, such as organising the funeral/wake (together with an appropriate memorial), or disposing of the contents of a house.
An executor is an important role
Given the importance of the role, it is surprising how many testators appoint two or more individuals as their executors (often family members such as children) who they know do not get on, or may even be positively hostile towards each other. Unfortunately, this can and does lead to difficulties and delays in applying for the grant and administering the estate. One of the executors may seek to take control of the process by removing financial or other documents from the deceased’s home without their co-executors’ permission and then trying to apply for the grant of probate alone, or by removing articles from the deceased’s home and refusing to grant access to the other executor.
One or both of the executors may decide to lodge caveats at the probate registry in order to prevent the other from obtaining the grant to the estate, leading to a stalemate situation. In extreme cases it can become necessary for the “wronged” executor to apply to the court to remove the other executor from his post altogether, but this is costly and time-consuming.
Not essential to appoint a family member
It is essential that a testator considers very carefully whether the executors he is contemplating appointing in his will are capable of cooperating with each other. If he has any doubts, it is best to reconsider the matter. The will draftsman should also be alive to the issue of potential conflict between executors and, in appropriate cases, be willing to offer the testator advice on the subject, so as to avert any problems occurring later on.
It is not essential for a testator to appoint family members, or friends, as executors. Some testators seem to feel obliged to appoint all of their children as executors, even when they are aware that there is a real potential for conflict between them. No testator wants his or her estate to be locked in a dispute caused by the executors, resulting in legal costs being incurred unnecessarily.
The same importance ought to be attached to identifying suitable executors of the will as to the beneficiaries of the estate, as they are the individuals who will jointly be responsible for carrying out the testator’s last wishes.