If you are making a Will, one of the most important things to consider is who to appoint as your Executor.
The person making a Will is called the ‘Testator’ and the Executor of the Will is the individual entrusted to manage the Estate (property, assets and investments) and to distribute the Estate to the correct beneficiaries according to the Will.
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An Executor may be appointed to administer the Estate solely, or, more commonly, jointly with another person. A joint Executor appointment will usually ensure that there is at least one Executor who can take control of the Estate administration if something were to happen to the other.
A Testator may decide to have joint Executors for the following reasons:
- By appointing the Beneficiaries as Executors, the Testator can be sure that they have a vested interest in administering the Estate correctly and are therefore more likely to work well together.
- Having friends or family members acting as joint Executors may be more cost-effective than using an independent professional Executor, who would otherwise charge for the legal work required.
- Family members who might otherwise be estranged from each other could be reunited if they are appointed as joint Executors to administer the Estate of a loved one.
However, it can be often be difficult for joint Executors to agree on the right course of action to take, when administering an Estate This can often lead to unpleasant disputes, which may be easily been avoided. Here we will consider the difficulties faced by joint Executors, and some of the ways in which they can be overcome.
How Can Joint Executors Avoid Conflict?
The role of Executor of a Will is to carry out the wishes of the Testator in accordance with the terms of the Will and the law. Usually, this involves:
- Collecting and safeguarding the Estate’s assets;
- Settling any debts associated with the Estate
- And finally, administering the Estate in accordance with the Will and the law.
Conflict can arise between joint Executors for a variety of reasons:
- Critical differences in opinion about how to administer the Estate most effectively.
- Action taken by one Executor without having first sought agreement of the other.
Whatever the nature of the potential conflict between the joint Executors it can usually be avoided in the following ways:
- Regular communication between the Executors. This builds trust and also gives both parties room to air and resolve any concerns they may have
- By employing a professional Executor, such as a law firm to administer the Estate. The professional will take care of all the legal, tax and other administrative processes associated with the Estate, relieving the joint Executors of the personal liability and emotional burden of doing this themselves.
- A professional Executor is specialised in this area of law, and therefore better qualified to administer the Estate. Their fee will simply be deducted from the Estate funds as an administration expense.
- In addition, the professional Executor does not have any personal connection with the Estate – their job is to ensure they administer the Estate in accordance with the law, and the terms of the Testator’s Will. There is not the emotional involvement of family members or friends who have been appointed as joint Executors, which can often lead to potential conflict between them.
- Executors may be conflicted by any personal knowledge they had of the deceased. Legally, the terms of the will must be followed, even if one of the Executors is aware of other wishes the deceased expressed, such as a different friend or dependant they wanted to benefit from the Estate.
- It is not a requirement to use the same professional who drafted the Will, to act on behalf of the joint Executors.
- An Executor can renounce (refuse or resign), leaving the other Executors to administer the Estate without them. However, they can only do this if they have not yet taken any steps to administer the Estate, such as opening an Executor’s account with the bank.
- The Executors may be required to obtain a Grant of Probate from the Court. If one of the Executors has a compelling reason why the other should not be acting in the Estate administration, this should be raised with the Court, and, if disputed, can ultimately lead to lengthy and costly litigation proceedings.
Administering an Estate can be a challenging responsibility at the best of times, and when two or more individuals are chosen for the role as joint Executors, the potential for conflict between them is considerably enhanced. Although, there are ways to minimise this, one of the best ways to avoid potential issues between joint Executors is simply by using a professional Executor. And they are not all as costly as you may think.
Co-op Legal Services is the largest provider of Probate and Estate administration services in England and Wales, trusted to deal with over £1.3 billion in Estates annually.