Appointing Executors in a Will

The appointment of an Executor is an important decision as the Executor has many responsibilities, obligations and discretions. While a person may specify how their estate is divided, most likely, it will not be specific on how the assets are to be administered before they are distributed to their beneficiaries.

There is no limit on the number of Executors that a person can appoint in their Will. However, the maximum number of Executors that can apply to the court for a grant of probate is four.

Unless otherwise specified, if more than one Executor is appointed, they must act jointly in their role as Executors. This means that they must agree on any decisions relating to the administration of the estate, and they are jointly responsible for those decisions.

Appointing two or more Executors has the risk of disagreement about how an estate is administered, which, if not resolved, must be decided by a court. However, a court is often reluctant to remove or discharge an Executor unless there is a risk to the welfare of the estate and the interests of the beneficiaries or if there is clear evidence that an Executor is an unfit person to act as Executor.

The choice of Executor, their personality and how they will work with other Executors is an important consideration for clients when they make their Will. This is particularly so when the Executors may continue in their role but as trustees of the estate when monies have to be invested for infant children.

Deadlock in decisions

Not only should the choice of Executors be carefully considered, but where there are two or more nominated, an appropriate mechanism in the Will should be specified to resolve any deadlock in decision-making between the Executors. This can include:

(a) That the decisions of the Executors act by way of a majority of them (where there are two or more Executors);

(b) The decision of one of the Executors has the power to have a casting vote or power of veto over the decisions of other Executors, e.g. eldest child. A common approach is where one of the Executors is a professional Executor; the decision of the professional Executor, who is usually independent, carries a casting vote;

(c) Where the Executors are in conflict, the issue in dispute is resolved by third person who is not an Executor, e.g. professional adviser.

Inherit’s legal bot will help you navigate these issues, including if the client wishes to appoint a joint, alternative or substitute Executor if an executive becomes unwilling or unable to act.