Smith, Burnett & Hagerman, LLC

Executors of your Will; the Children?

Do you REALLY want your Children as the Executors of your Will?

When it comes to estate planning, parents assume their adult children want to be co-executors of a probated will, or the co-trustees of a privately administered trust. An executor or trustee is the person that is appointed by the maker of the will or trust to work with the attorney and accountant to transfer property to whomever the maker of the will or the trust designates. Anyone can be named as the executors, co-executors, trustees or co-trustees. Some serve "in line," that is if Executor A can't serve, Executor B takes over. Do you want that list to include your children?

Nine times out of ten naming your adult children to administer your estate works out fine. But not always. While it might show your children that you don't have favorites by naming two of them, if there are latent problems and hard feelings between the two siblings, even hard feelings you aren't aware of, guess what is going to happen when they probate your will?
  • Your Will gives your co-executors the power to sell real estate. But your children can differ on the selling price, and differ on whether to sell the property as is or first spend money on improvements.
  • They can differ on value of a key piece of property—even if you use a neutral appraiser.
  • Each of them has a favorite realtor who is each whispering different numbers to the two children.
  • They may differ on how soon to probate your will.
All these problems are sources of friction. If the children are dependent on the agreement of each other before any steps can be taken, friction can build into resentment. The probate suddenly because filled with suspicion.

Often the estate checking account (out of which you pay the bills after decedent's death) has both co-executors on the account and requires both sign each check. If they don't get along, no amount of wishing and hoping on Mom or Dad's part can change that. One child can withhold his or her signature from a check, or an executor's deed, and thus withhold consent to the payment of a bill or the transferring of property. These are unanticipated problems.

One executor may end up in court seeking to oust the other sibling. That's messy.

Further, one co-executor believes he or she is doing all the work on the estate, but each wants the same executor's fee. Another recipe for friction.
  • What do co-executors do when they have to tell one of the youngest children that Dad left bypassed one adult child and gave that's child's share to the grandchildren, in trust, for their education?
  • What if one of the co-executors is very close to the child left out?
  • How is all this reconciled with the decedent's intent?
In most cases, parents should simply name the child most likely to be a good executor. Or name a friend or other "neutral" party as executor—a friend or a bank trust department. Banks cost more, but there is less headache and greater neutrality.