15 October 2015 marked National Conflict Resolution Day which promotes conciliation, mediation and other forms of dispute resolution which are regularly employed in contested will, trust and estate matters.
This got me thinking about the most common issues I come across on a regular basis. It occurred to me that the most common causes of conflict arise from the fact that either a will is not in place or a poorly executed will has been prepared.
According to the Money Advice Service, a whopping 67% of the adult population do not have a current valid will. There are a number of reasons why making a will and keeping it up to date are important, including:
- Choosing who benefits and how. If there is no will in place, your estate will devolve under the strict statutory rules known as the “intestacy rules”;
- Tailoring your wishes to reduce or eliminate inheritance tax;
- Appointing a guardian for your children who are under the age of 18. If you do not leave provision for your children, they may be cared for by Social Services until a court order is made, dictating who should look after your child;
- You can leave gifts to friends, families and charities. You can also create trusts to accommodate certain situations;
- Updating your will to keep pace with the changes in your life is crucial to effective estate planning; and
- Choosing the people who are responsible for dealing with your estate on your death, known as your executors.
This last point is a particularly important aspect of the will to get right. I have recently come across a very sad case which highlights the importance of making the correct appointment of your executors. In this ongoing case, the deceased’s estate remains unadministered 7 years after her death. The beneficiaries are yet to receive a penny from the estate and the amount they are set to inherit has been drastically reduced due to the many years of contentious litigation. The reason for all of this delay, litigation and hurt, lies with the appointment of the executors.
In this particularly case, the joint executors do not get on. Further, they were not aware of the joint appointment until the deceased passed away. The result of this appointment is that the executors have not been able to administer the deceased’s assets and the administration has been delayed due to litigation and counter-litigation which has been costly and protracted. As such, it is the beneficiaries of the estate who are losing out; far from the intentions of the deceased.
How do you choose an executor?
Choosing an appropriate executor is a very important decision. A lot of people appoint executors without even talking to the executor. Selecting an inappropriate executor can be a big problem. The appointment alone, as highlighted above, can cause disharmony within a family. The selection of an executor is a critically important decision as the amount of responsibility involved is high and the liability can also be high.
Many people choose to nominate a solicitor along with a personal executor when they write a will. This enables the burden of the work to be shared with a professional who can provide expert advice and guidance. The professional executor can also carry out the duties should the personal executor not be in a position to do so.
Whoever you choose, it is crucial to consider and ensure that the executor is able to act responsibly, fairly and in accordance with your wishes.
