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Wednesday, October 17, 2012

Using your will now to appoint an executor later

Choosing an executor should take a lot of thought. You should always try to be realistic about what you're asking people to do in your will. When clients discuss their choice of executor with me, they often express a wish that they would like to appoint a son or daughter but feel that the child is just not quite old enough yet. This is certainly a reasonable thought, as most of us wouldn't like to leave someone as young as 18 or 19 in charge of an estate. One way around this is to appoint an executor now in your will, then change your will after the child attains the age you think is appropriate.

Taking this approach assumes that you will have the opportunity to change your will when the time comes, and won't be incapacitated or killed unexpectedly or prematurely.

There is also an easier way to include the child as executor. You could state in your will that your son or daughter is to be named the executor only if he or she has attained a certain age.

For example, a woman might state in her will that her husband, John, is to be her first choice of executor. If John should predecease her or be unable or unwilling to act as executor, she would like her daughter, Jeannie, to be the executor, but only if Jeannie is at least 25 years old at the time. She might then say that if Jeannie isn't yet 25 at the time then she appoints her brother, Fred, to be the executor instead.

She could leave it there, or she could go on to say that the daughter is to be added on her 25th birthday to work along with the current executor.

This is very similar to the appointment of a guardian for a child, who will only be a guardian if both parents have passed away and if there is still a child under the age of majority. It's alright to add a few "ifs" to your will, so long as you are absolutely clear about how it all works, and so long as your will clearly explains your intentions. This isn't something I'd ever recommend that non-lawyers try on their own in a home-made will; leave the creative drafting to the pros.

I always tell my customers that when they are preparing a will today, their first goal is to cover off the next five years. This means basing your will on the way things are now, but taking reasonable possible changes into consideration.

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