Naming an Executor (also known as ‘Personal Representative’ or ‘Trustee’) of your Will would seem to be a fairly non-controversial issue and in most cases it is. Typically, a testator will name their spouse in the first instance, with one or more of their children as alternates. Problems can arise if the surviving spouse has lost their mental capacity or has reduced capacity, or if multiple children are named as joint Executors. When multiple individuals are named as Executors, logistical issues arise with respect to organizing and filing the application for a Grant of Probate and then administering the estate. This is exacerbated if the personal dynamics among the sibling Executors are poor. All too often long-dormant internecine rivalries are re-ignited after the death of the parents. The problem multiplies if one or all of the siblings lack financial acumen or are simply oppositional to anything proposed by the other sibling(s). Regrettably, this necessitates time and cost intensive court applications for advice and direction from the courts in order to move administration of the estate forward.
A better option is to name a professional such as an accountant who is familiar with your financial affairs as Executor. You may also consider naming a trust company as Executor. All of the major banks offer this service as do a number of smaller financial institutions. Many testators perceive the fees charged by trust companies as a disincentive to name them as Executor. This is usually a false economy as individual Executors are also entitled to a fee for acting in that capacity. Also, most individuals will act as an Executor once or twice in their lifetime, if at all. There is a steep learning curve when acting as an Executor, and personal liability attaches for any errors or omissions in carrying out their duties. Officers of trust companies who administer estates do this work all day every day – they are far more likely to administer the estate efficiently and correctly than a friend or family member who has never done the job before and may not in the future. Naming a trust company also alleviates much of the potential conflict that arises when siblings are required to act as Executors, reducing the likelihood of expensive litigation.
Written by Gary Kirk