Beware of appointing your children as executors

Where tensions exist between family members, making your children the executors of your will can cause huge problems with probate, leading to delays, legal costs and even the possibility of probate disputes, lawyers warn.

Whilst appointing your children as executors is common practice, our lawyers warn that those making a will should think carefully about who they appoint, especially if their children do not get along.

Jenny Walsh, a partner specialising in wills and trusts, says, “We see countless situations where the process of dealing with a loved one’s estate has all but ground to a halt, with long held grudges or differences of opinion between family members holding up the probate process at every stage.”

“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 well as ensuring your executors have a cordial relationship with one another, they should ideally also be from a younger generation, be financially responsible and able to keep good records. 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 you anticipate conflict around your estate, instead of choosing a family member, it is advisable to choose a professional executor when making your will. They will be able to act independently to carry out your wishes. Often people are concerned about how much this will cost the estate but in most situations the cost of a dispute between executors far outweighs those associated with appointing a professional as an executor.

Disagreements can also be avoided by ensuring there is no ambiguity around how you want how your assets to be divided, through a letter of wishes.

Jenny says, “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.”

When conflicts do arise between executors, solicitors can step in in an attempt to reach an agreement between parties, taking separate instructions from both parties and communicating between them to push the process along. If there is a disagreement over a specific legal issue, independent advice can be sought from legal counsel, with both parties agreeing to adhere to the outcome.

If these options fail, says Jenny, the process can become costly, “The next step would be mediation, which can be expensive and is not always payable from the estate if the conflict is seen as the fault of one or both executors. If all else fails, it is possible to go to court and ask for the removal of one of the executors. Invariably, however, the court will refuse to get involved in the dispute and instead order the removal of both executors, to be replaced by an independent professional administrator.

“It is, therefore, advisable to think carefully before appointing children, or any other family members that 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.”