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Monday, April 16, 2012

Three executors - is that a problem?

Recently I received a question from a reader mentioning that a will with which he is involved has three executors and asking whether having that number is a good idea. I take it that things are not going well,as the follow-up question was whether the lawyer who drafted the will was negligent for letting it happen. The choice of executor is always up to the customer. I believe that will drafting lawyers should talk through choice of executor with their clients and advise on any red flags that arise. I don't know whether that happened in this case. Hindsight is great. In a case where three executors aren't working out, it's tempting to say it would have been better with only one. And in a case where there was only one but that ne messed it up, it's easy to say there should have been more. This is the risk that the testator has to make,taking into consideration his lawyer's advice but also his faith inthe people he is appointing. As a general rule. I'm not in favour of having three co -executors simply because of the potential for disagreement. In some cases, a will with three executors will state that decisions must be made on a majority, rather than unanimous, basis. That helps, but doesn't prevent two of them from ganging up on the third. Whenever a testator wants to appoint three people, I'd like to know why. There are generally two answers. One is that they are trying to share the workload among the executors. The other is some variation on having the executors keep an eye on each other. It seems to me that in both of these scenarios, the testator is simply adding more names and not really adding any additional skills or abilities. Perhaps the testator who thinks he needs three people to look after his estate should be thinking about hiring a trust company, since he appears to feel that none of his available family members can handle the job.

5 comments:

  1. Hm, it looks as if this post was typed by a five year old. Sorry about that. I guess I'm not as adept at mobile blogging as I thought I was!

    Lynne

    ReplyDelete
  2. I found your blog while researching an issue we, a group of five residuary beneficiaries of my aunt's estate, are having with the individual who has been appointed as estate trustee (in Ontario). I have not been able to find anything that is close enough to our situation to be helpful but wonder if you have come across anything like it and could point us in the right direction.

    The executor has recently sent some very abusive emails to the beneficiaries (the recent issue is about the removal of residual assets from my aunt's residence on a date that none of us are available to receive the items and we have requested that the items be transferred the day before). In an effort to mediate the situation we have written to the estate attorney for advice and insight on how to best deal with the situation and allow the probate process to proceed. However, the attorney has not responded but the abusive emails from the executor were received shortly after we emailed our query to the estate attorney. We really are trying to avoid having the executor removed (aside from being offensive on a personal level to our knowledge he has not done anything illegal in respect of his handling of the estate)and are making every effort to ignore his personal attacks and be as accommodating as possible (for the record there has not been one instance of the heirs disagreeing over what assets we have been allowed to distribute so far). My question is: can the estate attorney respond to requests from beneficiaries which relate to the probate process, such as what do we need to do to help the process, not like "what am I getting", or is the executor the "client" in this instance and beneficiaries should not be communicating with the estate attorney?

    As an aside, the executor is claiming that the estate attorney is the one who was insisting on the date, which happened to be a Sunday, to remove the articles, stating that the attorney threatened to request a court order compelling us to go with the date. The executor also read a letter (to the spouse of one of the beneficiaries who called in hopes of working out a compromise) claiming it was from the attorney to the executor, which made specific disparaging remarks about 3 of the beneficiaries, none of whom have met or spoken to the attorney. If this is remotely true, how can we protect the estate from the incompetence of individuals who would behave in such a manner?

    ReplyDelete
  3. Hi Lynne. In this article you say, "In some cases, a will with three executors will state that decisions must be made on a majority, rather than unanimous, basis."

    Does this mean that if the will doesn't specify majority rules, that all decisions must be unanimous?

    Thanks!
    Deb

    ReplyDelete
    Replies
    1. That's right, Deb. They all have equal authority, equal rights, and equal say, which adds up to the fact that they have to decide everything unanimously.

      Lynne

      Delete
  4. My father passed on and my mother made her will and made me the lone executor and within one month she changed it to all 3 sons. Now mother passed on and two brothers are living in estate homes and will not leave, even after hydro has been shut off because of ten thousand dollars of hydro owing. Nothing is being done on estate as I can not get into estate home because of the brothers yelling and screaming at me. If I took them to court , would a judge agree with a conflict of interest on their part and put me in charge . Or what would the chance of judge appointing a trustee or administrator to have this go forward. Lots of estate money is being lost because property taxes are not being paid for and interest being added each day and interest on hydro ect and unpaid credit cards ect. This is the situation I am in and a year and a half has passed since my mothers death. thank you

    ReplyDelete

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