Beware making adult children the executors of your will if they don’t get along or could be upset over how you split your estate, lawyers warn.
You will be risking family strife and delays at each step of administering your last wishes, such as obtaining probate, closing bank accounts, settling bills, and the sale of the family home.
The latter is often the most contentious and emotive aspect, according to Jenny Walsh, a partner at Osbornes Law.
‘We see countless situations where the process of dealing with a loved one’s estate has all but ground to a halt, with long held grudges or differences of opinion between family members holding up the probate process at every stage,’ she says.
Sorting out a will: Family rows cause delays and lead to mounting legal costs to settle disputes
‘Appointing your adult children as executors works well for some families, but not for all, and you should think carefully before deciding who to choose,’ says Emily Deane, head of government affairs at the STEP body of inheritance professionals.
‘If you feel that your children are currently not mature enough to act as executors, you should not appoint them. Equally, if there is any existing or potential tension between your children, then it is best to avoid having any of them as executors.
‘Any conflict can incur delay and cost to the administration of the estate, and can damage relationships and cause further distress at a difficult time.’
Helen Stewart, head of probate at Thomson Snell & Passmore, says you can have a maximum of four executors, and people often appoint their spouse or another family member, but there is also a natural instinct to consider adult children for the role.
‘This might be the right decision in your case. However, it is a role of responsibility, which could easily go wrong causing family conflict and breakdown in relationships,’ she warns.
‘Sadly, we do see more estates in conflict due to mistrust between siblings or disagreement as to how to deal with estate assets causing long delays and adding more costs to the estate administration.’
The ideal executor: Who should you appoint?
‘As well as ensuring your executors have a cordial relationship with one another, they should ideally also be from a younger generation, be financially responsible and able to keep good records,’ suggests Walsh.
The nightmare of being executor to a will
Inheritance feuds are on the rise, a trend lawyers put down to rising property prices and the intricacies of modern family life, so how do you handle unruly relatives (and can you just resign)?
You might feel gratified to be asked by a friend or relative to be their executor, and sort out their will. It’s only after they are gone that the trouble can start.
Samantha Hirst, a solicitor at Ridley & Hall and a specialist in will disputes, explains how executors can get embroiled in family drama and how best to avoid this – and, if necessary, fight back.
‘Probate can be a complicated process, so it is better to avoid those who may be elderly at the time of your death or have a poor history of managing their own affairs.
‘Executors must remain neutral and if one or more take issue with how the estate is to be divided then there is an inherent conflict with their role as executor.’
Walsh cautions that the role of an executor can be a thankless task, and even more so if you are not benefiting under the will, so it is a big ask of someone who might be trustworthy but is not ultimately going to receive anything.
‘This is why most people would appoint their spouse and children, because ultimately they are benefiting from the estate so they will take on the role,’ she explains.
If you anticipate conflict and don’t have close family or friends who are trustworthy and willing to do the job, it is advisable to choose a professional executor who can act independently, says Walsh.
Deane says: ‘Our advice would be to choose a person or people you trust, talk to them to make sure they are happy to be appointed, and if you choose more than one person to act jointly, make sure they get along.
‘If you cannot meet these criteria, and/or if the estate is complex, it would be best to appoint a professional executor to avoid any issues.’
Stewart warns that there might be ongoing trusts under the will, which either have to be managed by executors or by separately appointed trustees.
‘With any ongoing trusts where the children are potential beneficiaries having them solely appointed as trustees may also present challenges and conflict,’ she says.
‘Some families favour a combination of their children and a professional adviser such as a law firm so that there is always a neutral party involved in the process.’
How much could a professional executor cost?
Walsh says it is hard to estimate the cost, as it will be based not only on a solicitor’s hourly rate but how many hours it takes, which depends on the complexity of the will.
Jenny Walsh: If there is any existing or potential tension between your children, then it is best to avoid having any of them as executors.
She adds:’ Often people are concerned about how much this will cost the estate but in most situations the cost of a dispute between executors far outweighs those associated with appointing a professional as an executor.’
Stewart says: ‘Lawyers charge on a time basis so hourly rates will be given with estimates and revised during the estate administration period as necessary.
‘The costs of having a lawyer involved either by direct appointment under a will or by instruction to assist your executors will be an administrative expense and deducted from your estate. Costs information will be given at the outset.’
Consider leaving a letter of wishes
You can try to head off disagreements and ensure there is no ambiguity about what you want by leaving a letter of wishes alongside your will, suggests Walsh.
This is a non-binding document that is stored with your will, and it might dispose of your personal possessions or explain the terms of your will more clearly, for example if you have left one child out, she says.
‘One common source of conflict can be when a will does not specify, for example, which personal possessions will be left to which beneficiaries and instead it is left to executors to decide who will get what,’ explains Walsh.
‘Prioritising who will be given the most expensive or sentimental items such as jewellery, paintings or other family heirlooms, can make things far easier for those you leave behind.
‘The letter of wishes is a popular option for distributing personal possessions because the testator can keep the letter up to date rather than having to amend the will many times.’
What if it’s too late and excecutors are already warring?
If all the above advice comes too late for your family and the executors of a will do fall out, they can consult lawyers separately at that stage.
Helen Stewart: Sadly, we do see more estates in conflict due to mistrust between siblings or disagreement as to how to deal with estate assets
Solicitors will communicate and try to push the process along, or advice can be sought over a specific issue with both parties agreeing to adhere to the outcome, says Walsh. But she warns if these options fail, the process can become costly.
‘The next step would be mediation, which can be expensive and is not always payable from the estate if the conflict is seen as the fault of one or both executors.
‘If all else fails, it is possible to go to court and ask for the removal of one of the executors. Invariably, however, the court will refuse to get involved in the dispute and instead order the removal of both executors, to be replaced by an independent professional administrator.’
Stewart says: ‘If, for any reason, a conflict did occur between the children then each child would be recommended to take independent legal advice to represent their position.
‘This does incur additional costs, which may not be considered an estate expense. The solicitor involved with the estate administration work would remain neutral until any dispute was resolved.’
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