David Ainslie, of Pitmans LLP, explains how to go about selecting executors of your will.
When advising clients about making a will, I always stress that choosing the right executors is the most important part of the process. Making the wrong choice can cause numerous problems.
Generally, I recommend appointing at least two, and preferably three, executors. Even in simple cases, where a surviving spouse inherits everything and seems the obvious choice, I recommend that at least one, and preferably two, other people are named as substitutes in case, for example, both spouses die in a common accident, or if there is to be an ongoing trust for children under 18.
Age does matter
You should select people who are likely to survive you, and who are fit and capable of doing the job. If you are between 20 and 60, your family and friends in the same age group will probably be OK as executors. This would not necessarily be the case if you are in your 70s and live for another 20 years.
If you are in your 80s when reviewing an old will, the friends or family chosen originally may be in mental or physical decline, and no longer capable of carrying out the executor role. Of course, someone named as an executor is not legally obliged to take on the job, but if they renounce probate and there is nobody else nominated, this may delay obtaining a grant and the distribution of assets.
For couples in their 60s or 70s, or settled into retirement, when many people review wills originally made at the time of marriage, the obvious choice may be to appoint their children, by then in their 30s, to act with the surviving spouse.
But not everyone has children, and even if they do, they may not get on well together, or one may be judged to be financially irresponsible, or otherwise ill-qualified for the job.
Friction in the family
Friction in the family leads to other problems when choosing executors. Choosing the ‘sensible’ son or daughter, but not the other, who has perhaps demonstrated a lack of responsibility, may cause them to feel deeply wounded at being left out. There may also be friction over the division of awkward assets.
Problems can arise when executors have to decide on the division of awkward family assets – farms can be an endless source of dispute, for example. If only one child wants to farm the land, how can others be given a ‘fair share’ of the property? Control of a family company can also cause problems, as can assets located abroad. Independent executors who do not have conflicts of interest may be part of the solution.
In cases of anticipated friction within the immediate family, it can help to look to siblings, or close family friends who know your children well, and who can be trusted to take sensible decisions.
For families prone to disputes, and single people who have no children, or are lacking close friends, one solution is to choose professional executors, such as the family solicitor or accountant, or a bank or other trust company. There may be (but not necessarily) a greater cost associated with appointing professional executors, but this may be justified to avoid disputes, or if there is simply nobody else available.
Professional executors are unlikely to have detailed knowledge of the deceased’s estate and family dynamics, so it is vital to write a detailed ‘letter of wishes’ to guide them. This will be even more important when a will contains trusts conferring discretionary powers on the executors, to be managed over many years into the future. Usually (but not always), the people appointed as executors are also appointed to act as trustees of an ongoing will trust, and they may have control over a family business or farm.
Choosing executors may not be simple, and as time goes by, the choice you make in early life will benefit from regular review as the family develops, and your personal assets grow in value and complexity.