When I made my first will about 20 years ago, I nominated two relations as executors and they were happy to be asked.
They are still my executors but they are not as active as they used be and I’m not sure that they would be able to act. But I don’t want to insult them by replacing them. Could I nominate two other people to whom they could assign the role if they wished? Something like: I nominate A and B as my executors but if either or both of them are unable or unwilling to act, I nominate C and D in their stead.
Ms D.O’M
You’ve done everything right so far but you are correct to be concerned. Wills are “moment in time” documents but our personal lives are nowhere near as tidy as that.
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Inheritance tax is a real bugbear for people who do not have children
Circumstances change, children are born, relationships formed or ruptured. And the people we confidently expected to be in a position to manage our affairs once we die can either drift away from us so we no longer feel as comfortable having them in the role, or they themselves become ill, die or simply age to a point where they might not feel as confident in the role.
So, as with everything else in our wills, it makes sense to review the position of those we have named as executors.
From the wording of your letter, it sounds as though you have updated your will on occasion over the 20 years since it was first drawn up but have simply retained the same executors without further reference to them. There’s no reason why they should be immune from review. And, if I am wrong and you are still operating on a 20-year-old will, then you should be reviewing the whole document anyway.
Sticking with the executors, it is worth noting that even though they stated 20 years ago that they were happy to carry out the role, there is nothing obliging them to do so.
When it comes to the crux, any executor has the right to take up the role, reserve their position on it or renounce it. That creates the risk of your intention in appointing them – having someone you trust in position to ensure your affairs are properly managed and passed on efficiently to your heirs – being frustrated.
Your initial decision to have two executors clearly helps with this to some degree – and is generally a good idea for people to consider when drawing up a will – but not if they are of similar age and potentially facing the same uncertainties about the role when the time comes.
There are two ways of addressing your concerns. You can simply replace the existing executors or you can add one or more backstops to step into the role if either or both are unwilling to act at the time.
You are not obliged to inform anyone that they are no longer an executor. In fact, you don’t have to tell someone you have named them as an executor in the first place though, obviously, it makes sense to do so to reduce the risk of them rejecting the role when called upon.
I wouldn’t be overly concerned about how they would feel about being dropped. First, you won’t be around to worry about it but, more pertinently maybe, I’ve rarely come across people who relish the role. Most find it intimidating and would likely be relieved to no longer bear the burden of a commitment made two decades ago, presuming there is no general ill feeling between them and any person appointed in their stead.
But, as I say, you don’t have to drop them. You can simply add another executor to act alongside them or in their stead if they are unwilling or unable. The choice of how you frame it is yours but clearly how any such provision is worded is important as wills are legal documents and you will not be around to explain the intent of your wording to a judge in the event of a challenge.
Practicalities
That brings us to the practicalities of how you would make any such provision. You can either draw up a new will and use the opportunity to make sure all other provisions are still appropriate – taking account, for instance, of the arrival of grandchildren, the death of an intended beneficiary, a new asset you may have acquired or simply a change of mind in how you would like to distribute your estate – or you can add a codicil.
What’s a codicil? It is a document with legal force that amends an existing will. It is generally used to make minor changes to a will, such as replacing executors or adding backup ones.
Critically it is subject to the same formal rules as a will – ie it must be dated, signed and witnessed in the same way that a will was, though not necessarily by the same witnesses – and it must refer to the will that it is amending.
You don’t absolutely have to have a solicitor involved in drawing up a codicil any more than they must be involved in drawing up a will but I would suggest it would be very foolish to go the DIY route. These are legal documents with potentially very significant impact and it is simply common sense to employ a professional to make sure you get it right.
You can have several codicils to the same will but most solicitors will advise that a will be redrafted once you have more than a handful of codicils. And in our digital world where the practicalities of drawing up a will are less cumbersome, it can be just as easy to amend the will.
The key things to remember about anyone you wish to appoint as an executor is that they should be someone you trust to carry out your wishes but, to avoid complications down the line, it is important that they also be someone who is capable of working in an organised fashion.
There are no limits on who can be named an executor but you are best advised to avoid anyone under the age of 18 or living abroad as, in practical terms, others may end up acting in their stead.
Generally it will be a spouse/partner, a close family member or a friend. If your estate is complex, it makes sense to appoint a professional executor – a solicitor or an accountant – to act either for you or alongside a family member.
Remember, the executor(s) is/are formally responsible for;
– organising your funeral (not something people generally realise) and paying for it out of the estate;
– gathering information on your assets and their value (and protecting them, including by insuring them as necessary) as well as any outstanding debts, including outstanding tax returns;
– identifying your beneficiaries and getting their details – addresses and PPS numbers – as well as any prior inheritances or gifts in excess of €3,000 taken from a parent, blood relative (grandparent, uncle/aunt or sibling) or anyone else as appropriate given their relationship to you;
– filing a Revenue Affidavit with details of the assets, liabilities and beneficiary details;
– securing the grant of probate;
– distributing the assets, which may well include selling assets to allow for the distribution of their value to the beneficiaries;
– keeping detailed accounts of any money paid out during the process and any money received.
Finally, any executor needs to be aware that, once they accept the role after your death, it is theirs for life. So if any assets (or liabilities) are discovered later on, it will be their job to sort them out.
Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice
