Sibling rivalry: How it affects appointing Executors of a will

Michelle Collins, Partner, Private Client, discusses the problem when joint Executors are rival siblings.

Parents usually come to see me and want to treat their children equally.  This extends to a need to appoint their children jointly as Executors.  

This can be a bad idea in some circumstances and can mean that an estate sits at stalemate if decisions can’t be reached.

The Testator’s responsibilities when appointing Executors

Whilst this may be a surprising first comment, the number one responsibility of avoiding conflicts between Executors rests with the person making the will. When drafting a will, you should give full consideration as to who should act as the Executor(s) of your will after your death.

It's not advisable to select an Executor with existing poor relations with the beneficiaries of the estate or to select Co-Executors who do not get on well together.

When appointing your Executor(s), you should not:

• Appoint all of your children because you think they will be offended if not appointed.
• Believe that disputes will not arise in your estate.
• Believe that appointing all of your children will 'bring them together' when you know that they do not get on. The added pressure is likely to push them further apart.
• Appoint Executors who are likely to have a conflict of interest when distributing assets in the estate. There are as many disputes over the distribution of smaller personal items as there are over valuable items.
• Decide against appointing professional Executors because of cost. The legal costs of assistance if there is disagreement, or if something goes wrong, is much higher.

What can Executors do to avoid conflict?

Communication is key

The key to successful administration is regular communication between the Executors and the beneficiaries (these may be the same people.) If communication is lacking, this may create distrust between the parties as they do not know what is happening.

Appoint professionals to deal with the estate

The Executors can jointly appoint a professional to deal with the estate, who will keep all parties informed and can retain impartiality between family members.

When appointing a professional, the Executors should check the firm’s expertise in dealing with estates, the qualifications of the staff who will be handling the matter and the fees that will be charged before the estate is distributed to the beneficiaries.

The fees would be an administration expense and so would be borne equally by the residuary beneficiaries of the estate.

Executors can step aside

More than one Executor may be appointed but not all need to act. An Executor may renounce/refuse to take out probate, leaving the remaining Executors to deal with the estate. This can only be done if they have not already started acting in this role.

One Executor takes out the Grant of Probate without the others

In most cases all of the Executors named would apply for the grant of probate on an estate. However, one or more of the Executors may apply by themselves subject to giving notice of the application to the other Co-Executors. The non-applying Co-Executor may then object to the application or ask to be a joint applicant. If there is a dispute as to who should apply, the matter may be determined by the probate court.

Removal of Executor

The High Court has a discretionary power by virtue of s.50 of the Administration of Justice Act 1985 to appoint a substitute Executor or to terminate the appointment of an existing Executor. Witness Statements would need to be submitted to convince the court to use its powers.

If you need advice on appointing your Executor(s), please contact Michelle Collins on 01603 625231 or email macollins@cozens-hardy.com