One of the most commonly stated goals of will-makers is to ensure that their estate is administered simply and efficiently.
Yet, some of the most bitterly disputed estates that I have seen over the last few years were disputed primarily because of the will-maker’s choice of executor of the will, where the will-maker appointed all of his or her adult children as executors.
It is understandable that will-makers want to treat their children equally, but appointing all the adult children as executors in many cases is a fundamental misapprehension of the role executors play in the administration of deceased estates. The role of the executor is to administer the estate in accordance with the terms of the will.So what is the problem?
Although the law provides executors with considerable powers, the law also imposes great responsibility. One of the primary responsibilities is to administer the estate according to law as soon as may be. This will require the executors to make unanimous decisions regarding all manner of things.
So what happens when adult children, whose relationships might have been tenuous at best during the will-maker’s lifetime, are charged with making the unanimous decisions that are a necessary adjunct of estate administration? Do you think that after the death of mum or dad, who were formerly the family peace-makers, that their children will all of a sudden get along, and efficiently and cooperatively administer the estate?
This problem applies equally where the appointment is made of other individuals who already dislike and are suspicious of each other. It is particularly disturbing that many of the disputed wills that I refer to above are drafted by lawyers who are not properly qualified to give advice regarding the choice of executor and, instead of advising and encouraging the will-maker to think through the available options, simply write down what their client wants, and allow the will-maker to sign off on a will that almost certainly result in great expense and disruption in the administration of the estate.
Poorly thought-through appointment of executors can result in ghastly expense, significant frustrating delays, and major disruption to the administration of an estate, and can end up in the Supreme Court, with the disputing executors fighting to have one or the other removed as executor in order that the estate may be administered.
There are many solutions to the problem of who to appoint as executors of a will, including the choice of who to appoint, and how the appointment is to take effect.