A few choice words

One of the first questions I ask when taking instructions for a will is the client's choice of executors. Some haven't considered the issue until then, others have already decided. Simple, they say, we'll have the surviving spouse and our eldest child because he is doing a law degree at university, plus all the kids get on so the others won't mind. We'll also have cousin Bob because he has appointed us as executors of his will. This all sounds fine on the surface, but death and grief can do strange things to people. Are these the right choices?

It is easy to assume that being an executor is a tick-box, sign a few papers type of exercise. It is much more than that. The role can last many years and is really quite onerous. This is the message that I try to get through to clients.

Yes, the executor can appoint solicitors to deal with a lot of the legwork, but this does not mean taking a back seat. They have to fully understand and approve the papers they are signing, which, with an inheritance tax account, for example, will represent a high level of detail. Where the will includes a trust, the executor will usually be appointed as trustee as well, so the role doesn't necessarily come to an end when the estate administration is complete.

The executor must be capable of doing a thorough and efficient job, but also have the time to do it. Often clients appoint family members or close friends who are professionals (including lawyers) on the basis that they can fulfil this first set of criteria, without appreciating that they are busy people and may struggle to find the time for such responsibilities. This will not only bring them under strain personally but may result in delays and stagnation so far as the estate is concerned.

Bloody mess

Potential family conflict is another issue. It is vital that executors get on as they must make decisions jointly. In extreme cases, an application could be made to the court to replace an uncooperative executor, which will be costly for the estate and is best avoided.

I've recently dealt with two unconnected estates in which the siblings appointed as executors couldn't work together. The parents in each case knew about the discord but appointed them anyway, perhaps thinking that it might help to iron out their differences, or maybe not wanting to favour one over the other. We had to apply to the court for a replacement executor in both cases meaning that the estate administration could move forward but at a cost. Family relations suffered as well.

Another scenario that causes problems is second marriages where step-parents and children are appointed to act together. It can work, but I have seen some messy and expensive disasters where it doesn't.

I understand that clients don't always want to appoint a professional executor because of concerns about cost - although most lay executors will appoint solicitors to assist them anyway so it's not always cost-effective. In addition, if court proceedings are required then the costs will rise rapidly.

If clients still want to appoint family members and friends, I recommend that they discuss this with their chosen individuals in advance, to make sure they are happy to act and understand what will be involved. I also actively encourage clients to make use of their letter of wishes to explain their choice of executors including whom they might want to have a 'casting vote' in the event of disputes.

Many clients underestimate the importance of choosing the right executors when making a will. ?To me it's one of the most important decisions they will make.

 

Fay Copeland is partner and head of private client at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser