One of the most important decisions to be made when making a Will is choosing who to appoint as your executors. After all, the people who you appoint will have the responsibility of dealing with your entire estate and making sure that it is dealt with properly and passes to the right people. Even where there are well-drafted and considered provisions in the Will, the administration of your estate will not go smoothly unless appropriate people are appointed as executors.
How not to do it
The importance of choosing the right people is illustrated by a recent court case heard in Northern Ireland. The case involved the estate of a Mr Michael Hoey, who died without making a Will. As the judge pointed out, this was “the nub of the problem”.
Mr Hoey’s widow obtained a Grant of Letters of Administration, which was authority from the court for her to administer her late husband’s estate. However, Mrs Hoey then went on to deal with the estate in the way that felt right to her, but which was not necessarily in accordance with the law. Mrs Hoey’s actions were contrary to one of the main duties of an executor which is to deal with an estate in accordance with the terms of the Will if there is one or in accordance with the intestacy rules if there is no Will.
Another duty of the executor is to collect in the assets in the estate. As Mr Hoey’s estate remained partly unadministered more than ten years after his death, Mrs Hoey had also failed to fulfil this responsibility.
As a result, two of Mr Hoey’s children applied to the court for an order removing their mother as administrator. The judge decided that Mrs Hoey did not understand her duties as administrator, had not discharged those duties and had not properly protected the welfare of the beneficiaries of the estate. Consequently, he removed Mrs Hoey from her position and replaced her with a professional.
Lessons to be learned
As stated by the judge, if Mr Hoey had made a Will then the problem may never have arisen. One of the advantages of making a Will is that you can choose your executor, meaning that you can appoint someone who you think will be suited to the role and who will do a good job. So the first step is to make a Will.
Who to appoint?
In deciding who to appoint as your executor, you should consider the following:
- One of the key issues is trust: who do you and your family trust to deal with all your worldly goods after your death?
- The role of executor can be an onerous one so the person appointed should be someone who you feel can be relied on. It is usually best to check with them that they are prepared to take on the role.
- It is helpful if executors are financially literate, but as many executors appoint solicitors to act on their behalf in administering the estate on a day to day basis, they would not need to have a thorough understanding of the law.
- The executors should also be able to work together harmoniously so that the estate is dealt with as quickly as possible. Michael, for example, is married to his second wife Sarah, and Sarah has a difficult relationship with Michael’s children from his first marriage. Clearly a joint appointment of Michael’s adult children and Sarah could lead to difficulties, and even to deadlock if they cannot reach agreement on key decisions. In this situation it might be better to consider appointing a professional so that there is a neutral person in charge of the estate and no clash of opposing interests.
- Other qualities that would be desirable in an executor are organisational skills, and the time available to devote to what can be a very time consuming task. Beneficiaries can be executors as long as they are able to consider the interests of the estate as a whole and not just make decisions to their own advantage.
Some careful thought at this stage can save a great deal of time, trouble and expense later. Choosing the best people to be your executors, and perhaps taking into account the views of your professional advisers, will ensure that your estate is dealt with in the most efficient ay.
For information on choosing executors or replacing executors in your Will, please contact any of our Private Client team.