How can you avoid conflicts between joint executors? Michelle Collins, principal at Cozens-Hardy LLP solicitors, explains.

The testator’s responsibilities

Believe it or not, the number one responsibility of avoiding conflict between executors lies with the person whose will it is (testator). 

When drafting a will, the testator should give full consideration to who should act as their executors. When nominating executors, a testator should not:

• Choose an executor who has existing poor relations with the beneficiaries under the estate, in the hopes that relations will improve over time.
• Appoint all of the children to avoid causing upset or umbrage to those not appointed
• Assume that disputes will not arise in their estate.
• Believe that appointing all of the children will somehow cause unity, when ordinarily they don’t get on  – the added pressure and stress is likely to push them further apart.
• Appoint executors who are likely to have a conflict of interest when distributing assets  – distribution of smaller personal items can cause as many disputes as valuable items.
• Decide against appointing professional executors because of cost, as the legal costs of assistance if there is disagreement, or if something goes wrong, will be much higher.

What can executors do to avoid conflict?

Communicate

The key to successful administration is regular communication between the executors and the beneficiaries (these may be the same people). Without good levels of communication, mistrust and lack of clarity may develop between the parties.

Appoint professionals to deal with the estate

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 that 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, 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 of them 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 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 about who should apply, the matter may be determined by the probate court.

Executors also have the option of having their power reserved to them instead of either agreeing to act as appointed, or renouncing altogether.

Remove an executor

The High Court has a discretionary power by virtue of Section 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. 

About the author

Michelle Collins is a principal  at Cozens-Hardy LLP. She specialises in all areas of private client work, in particular, wills, tax planning, trusts and probate work. Michelle is a member of the Society of Trust and Estate Practitioners. To find out more visit www.cozens-hardy.com, or follow on Twitter @CozensHardyLLP.

Publication date: 20 February 2015