We are a couple revising our wills. We have no offspring and would like to appoint some of our siblings or nieces and nephews as executors. They are all living overseas but return to Ireland regularly.
I have been told that appointing executors in this case can raise issues and isn’t straightforward as it sounds. Can you advise?
BA
When it comes to wills – at least for that minority who even bother to think that far ahead – the focus is almost always on what a person wants to do with their assets rather than who will oversee that process. But choosing executors is an important element in estate planning.
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First off, it is not a role that suits everyone. You can trust very close family and friends implicitly, but they might not be the type of organised person suited to the sometimes finicky and legal role of executor. They might not even be comfortable with the notion of handling the affairs of a dead sibling or friend, leading to delays, confusion and, potentially, discord.
And then there is the age factor. We might trust our friends or family with our financial affairs but, by the time we die, they could be facing their own issues with health, memory and energy. There’s even a chance that they could predecease us, complicating matters.
And in an age when we are all living longer, age and confidence in their ability to undertake the functions of the role can even be an issue for children for those who have them.
Opting for people who live abroad is certainly an additional complication, one the does present a dilemma for many families in today’s world where work or even just a sense of adventure means many close family members may no longer live in Ireland.
However, it does not have to be insurmountable.
Depending on how your executors approach the role, the challenges can be both legal and practical.
The most serious issues arise for people who intend to manage a person’s affairs by way of personal application for probate.
It has to be said that this is the less common approach and, in reality, is suitable only for people who are dealing with very straightforward basic estates. Most people choose to engage a solicitor to file for probate as it is very much a legal process.
But if your children were looking to go it alone, the Probate Office will not permit it for executors who are living outside the State. If you had more than one executor and at least one of them was resident in Ireland, it would be possible to pursue a personal application if the foreign-based executors either renounced the role or reserved their powers.
Renouncing your role as executor is final and precludes you from any involvement in the management of the estate. Reserving power means you are stepping back from the active management of the estate but you have the right to apply at a later point if necessary to become active once again.
Given your children all live abroad, if you chose to confirm them as executors, they would have to engage a solicitor here to organise probate.
Even outside personal applications for probate, at a more practical level, there can also be complications with foreign-based executors.
Much of the role relates to gathering a person’s assets and clearing any debts before ever getting to probate or distributing the assets. For most of us, that means dealing with banks, credit unions, stockbrokers, insurers, financial institutions, utilities (such as electricity and has providers, bin services, phone and broadband providers, TV services etc) and credit card companies.
There is also the need to set up an executor’s account in which cash assets are gathered before distribution to beneficiaries..
Each and every one of these contacts will require verification of an executor’s identity and address, as well as things like certified copies of death certificates, wills etc to confirm function. And, speaking from personal experience, where an executor is not based in the State, those checks become more complicated.
Rather than simply providing a passport or driving licence and a proof of address, for people living abroad these documents will have to be certified, meaning any foreign-based executor will need to go a solicitor wherever they live. That’s an additional expense. It can, of course, be claimed from the estate as a reasonable expense but that doesn’t negate the hassle factor.
The executor’s account will need to be in the jurisdiction of the person who has died so, in your case, here in Ireland. And a bank will almost certainly require a person opening an executor’s account to apply in person, entailing a trip home to do that, if they are managing that much of the process themselves.
The obvious way around this is for the executors to engage a solicitor, not just to apply for probate but also to manage much of the executor process, albeit other executors will still have to go through the paperwork demands.
Or, you could take the next step and name a family solicitor (or their firm more likely to account for any death or infirmity of your chosen legal adviser) as executor either by themselves or alongside family.
If family find the role too onerous, they can reserve their power, letting the solicitor get on with the process. Reserving their power means they can apply to get involved again further down the line if there is any unhappiness with how things are being done, unnecessary delay or disagreement.
Yes, the solicitor will charge your estate for their work but, as I said at the outset, managing the affairs of a person who has died can be a convoluted and legal process so that could be money very well spent.
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 with a contact phone number. This column is a reader service and is not intended to replace professional advice
