Executor Horror Stories Pt 4:
The executors who don’t get along

By

September 8, 2016

It is quite common when considering who to appoint as executors of an estate, for parents to decide to appoint their adult children as joint executors. The parents think that by doing so, the outcome will be as fair as possible.

But what if the adult children don’t get along or don’t agree? As in past executor horror stories, Will makers think that even though their adult children don’t get along now, their grief will unite them and the arguments will be forgotten.

Unfortunately, this is very rarely the case.

John died at the age of 91. He’d survived his wife by 10 years, and he decided to make all three of his adult children co-executors of his Will. He was hopeful that, despite some long-held grievances between his children, that his death will provide them with an opportunity to restore their relationships with each other.

As John’s financial planner for the past 20 years, you know better. You know the family history – that in truth, John’s children, Douglas, Marcia and Liza, have barely spoken to each other in 15 years and hold longstanding grudges against each other.

You notice that when Douglas, Marcia and Liza arrive, they are civil to each other throughout the funeral ceremony (although Liza doesn’t like the choice of flowers and Marcia dislikes the hymns chosen). It doesn’t take long for the three adult children to remember why they barely speak, and spend most of their time at the wake complaining bitterly about each other and trying to drum up support for their own cause. You observe that three distinct camps are starting to gather, which are crystallised by the end of the wake.

You let the adult children know that you are standing by to disperse the investments you have managed for John as per the Will. The first item that must be ticked off is
to find the original Will. John has left his Will with his long-time lawyer, whom he has known and trusted for years, someone you know quite well. Douglas announces that he doesn’t like the lawyer and won’t work with her. Now the three must find a lawyer they can all agree on to get the Will probated.

Three (executors) is a crowd

Douglas, Marcia and Liza try for several months to agree on a lawyer to retain, and can’t find one. You make several suggestions to them, but Douglas won’t hire anyone under the age of 40 (too young), Marcia won’t hire anyone but a woman (too male) and Liza won’t hire anyone unless they have a ‘good vibe’.

Finally, after six months of arguments, the three decide to hire their own lawyers.

You note to yourself that instead of there being one legal bill to administer the estate, there are now three. The estate administration costs are likely to be three times more than they need to be.

Now the three lawyers must try to agree on behalf of Douglas, Marcia and Liza. The first issue is the contents of John’s home. John was a war veteran and proudly wore his own father’s war medals every Anzac Day. Douglas wants the war medals – he’s the only son. But Liza argues that Douglas was never in the army, and the medals should really go to her husband, who fought in Vietnam. Marcia desperately wants her father’s wedding ring, but Douglas and Liza object. If she gets the wedding ring, what will they get that could be equal in sentimental value?

The arguments drag on along with the months. Small agreements are reached, but the legal fees are mounting. The investments in John’s portfolio remain where they are.

In fact, they’ve almost agreed on how to divide the contents of the house when it occurs to Douglas’s lawyer: if the three can’t agree on items of very little value, how will they agree on the major decisions, like selling the house, appointing a real estate agent, and dividing the proceeds of the investment portfolio? It’s a thought you’ve had many times over the past few months.

Agree to disagree

Douglas’s lawyer, who has a great deal more grey hair since agreeing to represent Douglas, suggests to the three that since they struggle to reach agreement on just about anything, they should formally agree to disagree. He suggests the appointment of an independent administrator in order to finalise the estate. In these circumstances, the independent administrator is usually the government’s trustee organisation, a trustee company or an accredited specialist in Wills and estates.

A list is circulated of possible candidates. Douglas won’t hire anyone under the age of 40, Marcia won’t hire any of the male lawyers, and Liza doesn’t like the vibe of the  government’s trustee organisation. Finally, after several more weeks, agreement is reached, and they make an application to court to appoint the independent administrator.

The court appoints the independent administrator, an accredited specialist. She will now begin working on administering the estate and charging
for her work – something that should  have been commenced two years ago.

The investment portfolio is still waiting, and you note that this is quite a simple estate – getting a house ready for sale and dividing a liquid investment portfolio. Imagine the costs if it were a more complex estate.

Instead of the legal fees being $4000-$6000, the estate’s total legal fees are now more than $100,000 because the Will maker thought that three people who don’t get on, will get on just because he’s dead.

Haters hate-on

In cases like these, it’s far better for Douglas, Marcia and Liza to hate the independent administrator than each other. The independent administrator will continue on with their job despite the hate, because they know what they’re doing, they don’t have favourites, they’re professional, they know the law, and they’ll save the estate money in the long run.

Ultimately, the moral of this story is to take into account the personalities and circumstances of those you wish to appoint as executors of your Will. Sometimes, the fairest choice is to take it out of their hands completely and appoint someone independent such as a specialist in Wills and estates or a trustee company.


TOPICS:  estate planningWills & Estates



Bryan Mitchell is an Accredited Specialist, Wills & Estates, and is managing director of Mitchells Solicitors - mitchellsol.com.au Anna Hacker is an Accredited Specialist, Wills & Estates, and is national manager, estate planning, for Equity Trustees - eqt.com.au