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Friday, July 30, 2021

If you're named as executor, should you read the will before accepting the appointment?

My clients frequently ask me whether they should give their named executors a copy of the will once it is signed. For the record, I often say no. When the contents of the will are known and my client wishes to make a perfectly legitimate change to it, he or she often runs into resistance from others, or suspicion about why the change is being made. But as always, answers to questions are situational and what suits one client might not suit another. I ALWAYS advise them to let their executors know they've been appointed and let them know where the original will is kept.

But what if a named executor asks to see the will before accepting the appointment?

I think this is a reasonable request by an executor and one that we will see more of in the future. Executors are becoming better educated about the personal liability and stress that can arise from acting in the role of executor.

I don't agree with executors making suggestions to the testator about how the estate is to be distributed. That is simply over the line. However, I think it's acceptable for an executor to want to be sure that certain questions are answered by the will. For example, is the executor going to be paid for his work? Is there going to be a co-executor? Will there be trusts that will be administered over many years? It's fair to know what you're getting into.

I also think it's fair for an executor to refuse to be appointed to a will that is clearly poorly made. I'm thinking primarily of home-made wills that raise more questions than they answer, but not exclusively those. I've seen plenty of lawyer-made wills that are pretty useless. Wills should contain specific authorities that make the executor's job easier, such as the authority to hire a lawyer, realtor or accountant and pay them out of the estate. Or the right to make tax elections, or give items as they are without selling them first, or to invest as he sees fit (as long as he's being prudent). Language needs to be clear with absolutely nothing in the will that can be interpreted more than one way.

The better the will, the fewer problems that usually arise.

And what if an executor knows that the testator's family is going to fight the will? And yes, sometimes that is known in advance. An executor may feel that he simply does not want to deal with certain family members or get involved in certain issues. To me, that's fair. The answer is not for the executor to ask the testator to change his will; the answer is for the executor to turn down the job.

I also think it's a great idea for an executor to request that the testator leave a package of information with the will, such as a list of where accounts and policies are held, a list of credit cards and loans, and passwords for online accounts. Even better, if you're named as an executor, give the testator one of these workbooks to fill in and return to you.

2 comments:

  1. I tried to order your book To My Family with Love without success. I added to cart but the page did not take me page where I could completer the purchase.
    Bbheelis@hlamlaw.com

    ReplyDelete
    Replies
    1. I tried emailing you directly from two different addresses but I kept receiving the message that my mail was blocked. So... we have copies of the book in the office which you can purchase by contacting Chelsea at 709-221-5511 or chelsea@butlerwillsandestates.com.

      Lynne

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