Posted: Friday, 4 January 2019 @ 13:43
One of the dilemmas facing executors of wills is that
they have a balancing act between trying to distribute the estate quickly eg
give the cash the beneficiaries yet administer the estate correctly and ensure
that there are no possible negative repercussions later.
The law is clear that if the executor gets it wrong, the
executor can be personally liable. Yet the poor long suffering executor can
find him/herself dealing with difficult and demanding beneficiaries who may have
their own agendas beyond getting their hands on the cash as quickly as
So what to do? Are there any guidelines that can help the
executor stay clear of problems on the conduct of the estate?
Here are some tips.....
1 Irrespective of whatever possible family differences/difficulties
with the people you are dealing with, keep the relevant parties informed. Evasiveness/
lack of information to others does not pay and in my experience stores problems
for later. This is so even when there is no legal obligation to disclose such as a will or financial detail. Generally the more information
given the better for tactical reasons which can be useful later. (such as in showing you have nothing to hide)
2 Focus on the goal - which is to get the estate dealt
with as legally correct as possible but also promptly. Never lose sight of that
which you can be easy to do if you are dealing with the day to day aggravation
of someone difficult(making your life a nightmare) and the overall stress of a doing an estate within a time of grief.
3 Remember you
have time. By law you have one year to distribute the estate within date of
death("the executors year") so this can take pressure off dealing
with the estate. However, do not use this as an excuse to delay. Again, I
like(and the courts do too) executors
who get on with it and are seen to get on with it.
4 Communicate firmly but calmly in the face of pressure.
A key aspect of dealing with a conflict situation is the ability to maintain
your integrity and security in the face of poor, sometimes bad conduct by others. Your
ability to remain calm in the face of unwarranted pressure will stand you in
good stead if a judge ever scrutinises your conduct.
5 Whenever appropriate persistently offer mediation as it
will psychologically undermine the opposing party and again it is what the courts
like to see. If I am facing a difficult party I will always keep offering
mediation and reminding them( if they refuse) that I have offered it. The
impact is to maximise the chances of a costs award in my client's favour should
this go to court. It will also create divisions between them and their lawyer
as their lawyer should be advising them to mediate. The stress can be transferred more to the opponent.