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Warning for parents appointing children as executors

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12/07/2022
It’s common for parents to appoint their adult children as executors of their will. But this decision could cause problems in the future.

When it comes to appointing an executor of your will, it’s important to think carefully about who will be able to carry out the job and see that your wishes are met following your death.

While it’s common for parents to appoint their kids, this can be problematic particularly if there are existing tensions between family members, Osbornes Law warned.

It said it has seen countless situations where the process of dealing with a loved one’s estate has been dragged on because of historic grudges or differences of opinion. As well as delays, families could even face legal costs and the possibility of going to court.

Jenny Walsh, a partner specialising in wills and trusts at Osbornes Law, said: “For many, making their child an executor will be problem free, however, where siblings or other friends or relatives acting as executors don’t get on, or where one executor believes the estate has been divided unfairly, it can become impossible for them to agree on the basics, from obtaining probate, closing bank accounts and paying invoices, to the sale of the family home – often the most contentious and emotive aspect of dealing with an estate.”

As such, Walsh said those drafting up their will should ensure executors have a cordial relationship with one another, be financially responsible, and be able to keep good records. Ideally, they should also be a younger generation.

Walsh added: “Probate can be a complicated process, so it is better to avoid those who may be elderly at the time of your death or have a poor history of managing their own affairs. Executors must remain neutral and if one or more take issue with how the estate is to be divided then there is an inherent conflict with their role as executor.”

If your options are limited, you could choose a professional executor who will act independently. While many may be concerned about how much it will cost the estate, Osbornes Law said in most situations the cost of a dispute between executors “far outweighs those associated with appointing a professional as an executor”.

Another way to minimise any potential disputes is to write a letter of wishes.

Walsh said: “One common source of conflict can be when a will does not specify, for example, which personal possessions will be left to which beneficiaries and instead it is left to executors to decide who will get what.

“It’s advisable to leave a letter of wishes alongside your will to give more details – many people plan to do this at a later date but never get around to it. However, prioritising who will be given the most expensive or sentimental items such as jewellery, paintings or other family heirlooms, can make things far easier for those you leave behind.”

She warned that when conflict arises between executors, solicitors can help reach agreement between parties. Independent advice can also be sought from legal counsel with both parties agreeing to be bound by the outcome.

However, if these routes fail, mediation is another avenue but it can be expensive, as is court action.

“It is therefore advisable to think carefully before appointing children, or any other family members who do not get along with each other and would not be able to carry out the role of executor in a neutral and objective manner,” Walsh said.

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