Over the last two weeks, a number of blogs have addressed the issue of choosing an executor.  Here is a litigator’s perspective (for better or worse).

Choosing two or more executors may be the right choice in many circumstances, but a testator should be aware of the potential problems that come with multiple executors.  Executors can often disagree especially if they have conflicting personalities.  Sadly, human dynamics and frailties should not be underestimated in stressful situations. 

A testator may prize unanimity among his/her co-executors.  If not, who then casts the deciding vote?  Multiple executors have a duty to consult with one another.  How far does that duty extend?  What and when should the opinion of a minority be considered and accommodated?  When is court direction required?  The above scenarios are all recipes for disaster (and added expense) if not addressed in the Will or by the executors at the outset. 

Finally, here is a sad litany of complaints levelled against an executor who, not surprisingly, now faces a removal application:

• failure to pay property taxes and insure real property;
• failure to charge occupation rent;
• payment of legal fees by the estate for unrelated matters;
• improper use of professional advisors;
• negotiating “side deals” with beneficiaries that offend the spirit and intent of the Will;
• failure to properly value estate assets/failure to obtain professional valuations;
• a lackadaisical approach to paying estate debts;
• treating beneficiaries differently and unfairly; and
• failing to communicate with the beneficiaries.

The list could and does go on.  However, the above is a good reminder why an executor’s role should not be assumed or handled lightly.

Gelukkig lazing (Dutch for “Happy Reading”),

Justin de Vries