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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, paying debts and 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.”
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FAQs
Can your children be executors of your will?
Yes, anyone aged 18 or over can be executors of your will. However, you need to consider the following before deciding if sons or daughters should be executors:
- Do they have the maturity to take on the duties of an executor? Executors must be capable of managing finances, communicating with beneficiaries and creditors, and navigating the probate process.
- Are there likely to be conflicts of interest? Executors must act impartially and in the best interests of all beneficiaries. If there is a risk of disagreements among your children, it may be advisable to appoint an independent executor or professional advisor instead.
- Do they live close to you? Executors may need to attend meetings, manage property, or liaise with local authorities, so it can be helpful if they live relatively close.
If you are thinking which child should be executor, it’s important to think about whether you can trust them to follow the instructions in your will and to be able to deal with any disagreements fairly. The amount of paperwork involved in administering an estate means they need to be organised and be able to pay attention to detail.
Whatever you decide, it’s advisable to discuss your intentions with your children so that everyone is aware of your wishes.
With a deep sense of gratitude, I want to thank you all for your diligent and comprehensive contributions and assistance in my legal travails.
I am sure you know how stressful legal proceedings can be for everyday laypersons like myself. Thankfully, you have been a bastion of support and reassurance during these trying months, and I struggle to find the right words to express my sincere gratitude.
Thank you from the bottom of my heart.
I have been a client of this firm for a number of years and been impressed by a particular individual, the care and thoughtfulness with which they have worked. Jenny Walsh
A private client team offering a range of services to assist with private client matters including trust and probate services. A friendly approach with a keen eye for detail.
I have been a client of this firm for a number of years and been impressed by particular individuals, the care and thoughtfulness with which they have worked.
An efficient firm which provides an excellent service at highly competitive charging rates.
The team receives a steady flow of instructions from high-net-worth individuals and families on an array of tax planning, wealth preservation, estate and succession planning issues
I think this firm has excellent strength and depth in this area, for both contentious and non-contentious work, and they can hold their own against any other firm.
I have found them to be incredibly knowledgeable and pragmatic in settling claims for their clients.
The contested estates team is strong with talented young solicitors doing good quality work
The nimble team acts for a broad range of high-net-worth individuals and families on a variety of complex estate and trust litigation.
Osbornes has a ‘strong private client department’ and ‘the firm seems to be going from strength to strength’.
Thank you for managing my case, following a complete fiasco before I contacted Osbornes Law. I know that the work involved was rather complicated, possibly frustrating and often time consuming. I was impressed with your current knowledge of the case when we had the first meeting at your office. I regard a face-to-face meeting as imperative in developing positive relationships. Members of your team, such as Alex and Ella were impressive too, with their efficient, friendly manner of working.
I am grateful for your patience, advice and excellent support at a difficult time. Hopefully it won't be necessary to contact you again regarding this matter! I will definitely use Osbornes Law in the future."We would like to thank you very much for your help.
You always got back to us quickly and gave us very precise information.
I don't know how we would have handled our father's inheritance without you.
Thank you very much!"
“Thank you for your 1st class professional service and support on this.”
“Jenny was fabulous….full stop!”
“Many thanks for all your assistance in this matter [making a will] we are very pleased we chose to come to you and Osbornes.”
"Thank you Jenny for all you have done... I am very appreciative and glad that we selected you to do the work. It has made the path of Probate smoother than anticipated and your expertise has been reassuring throughout."
"Jan Atkinson, with her steely, steady, calming presence, instils confidence in the most highly-strung of us clients. With her masterful knowledge of the law, old and new, and its application, Jan can navigate through the most complex of cases to a successful end."
"I find Osbornes’ client-friendly approach welcoming and refreshing"
"A medium-sized London firm dealing with big litigation and doing it extremely well because of a depth of expertise and experience."
My family had the pleasure of Jan Atkinson working with us on the will and probate issues of [my mother's] estate in Camden and Ireland after she passed on last year. Jan and her assistant(s) offered us a fantastic service at a sad time.
"Jan Atkinson stands out for her wide-ranging knowledge and experience of estates; whatever problem you throw at her, she has seen it all before and is able to find a creative and sustainable solution. She has exceptional commitment to her clients and explores every avenue to find the best solution for them"
The team is very caring, experienced and detailed and was clear about the next steps and offered very helpful advice and suggestions
Jan Atkinson has extensive experience in private client matters, which underpins her excellent skills in the contentious probate area. Plus she is strong on international matters
A small but formidable team, punching above its weight. Jan Atkinson is a seasoned pro. Approachable but no push-over
"They are an outstanding firm to work with. They are consistently impressive in their work."
"Elspeth Neilson is very reliable and practical."
"The team frequently deals with cross-border estates for high–net-worth individuals."
"The team were extremely professional in putting my needs first. There was a joined-up approach to catering for the client, and all lawyers involved were briefed and constructive."
"Service prompt and effective. I have absolute confidence in Maggie."
I am happy with the service that I got and would recommend you to other potential clients.
I found Osbornes always very helpful and efficient.
We are very pleased with the services of Osbornes. Highly professional and through with close attention to detail.
I would highly recommend Jan Atkinson in any probate matter and Osbornes Solicitors in any other legal matters.
Jan Atkinson is a very proficient lady whom I would highly recommend to anyone involved in probates.
Thanks for all your work and explaining everything so clearly. For any legal matters in the future I would not hesitate in instructing Osbornes.
We have found your service to date as the most informative we have come across.
Jan Atkinson is confident with a straightforward approach. Her practice covers both contentious and non-contentious matters, including wealth planning and estate administration.
I would like to thank everyone in my case for the excellent job!
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