Oftentimes clients want to make two or more of their children co-executors. Usually, this is done to avoid the appearance of picking a favorite. Unfortunately, it is almost always a bad idea to name co-executors over a probate estate . Contrary to intuition: If there are any latent bad feelings between siblings, being appointed co-executors is the best way to drag those feelings to the surface (or if there are none, then creating a co-executorship is the best way to create ill will).
But one example of this involves the sale of real estate. Even if the will specifies that the land is to be sold, siblings could easily come to different opinions about what a reasonable selling price is, or whether to sell the property as is, or to make improvements first. If one of the siblings is appointed executor, the other may disagree, but, in most cases, they will defer to the executor. If, however, they have been appointed together, each may feel an obligation to mom or dad, to make sure the highest value possible is received. Each of them may speak to different realtors, or look at other sales comparables, and what began as simply an underlying feeling of “that doesn’t seem quite right, but what do I know”, becomes instead an opinion which is the only and obvious solution.
Other common issues that can cause friction even between well-meaning siblings is how soon to probate the will. Some children feel greedy if they start going over bank accounts too soon after a parents death, and others feel a comfort in following through with formalities and promptly dealing with the last task their parents assigned them. If only one child were appointed, the personal preference of the other may raise the eyebrows of the other, but is unlikely to be a source of lasting friction. If, however, the children are dependent on the agreement of each other before any steps can be taken, this can become a source of deep resentment. In other words, what may seem innocuous outside of probate, suddenly becomes the subject of the suspicion and conflict during probate.
On the other hand, it is often surprising how angry a co-executor can become when they feel like the other executor is leaving them to do all the work by themselves (or worse, going behind their back). The Keatings know that Alex is much more likely to be the child to follow through with hiring a lawyer, setting a court hearing, and taking an inventory of their property, but they don’t want the more emotional Mallory to feel left out. So they appoint Alex and Mallory as co- executors. However, as the parents could have guessed, Alex is the one who ends up actually doing the work. If he would have been appointed executor, he would have felt that his parents recognized him as being more responsible. Mallory would most likely have realized that her parents wanted to spare her details which would have made her uncomfortable to deal with. As co-executors, Alex feels Mallory is simply not carrying her share of the burden. After all, just because he is practical, doesn’t mean it is less pleasant for him to sort through their memories and belongings. What could have been an honor for Alex, becomes a burden, and a source of friction.
Sometimes I have clients who are considering appointing co-executors because they know there are bad feelings between their children. Peggy and Al know that even though Bud is the best person to be executor, Kelly will not trust anything that Bud does. In a case like this, the best thing to do is carefully consider if Kelly would be right to be suspicious. If in fact, Bud cannot be trusted, the parents may want to rethink naming him as executor. Nevertheless, if they feel they must name him as executor, they may want to discuss with their attorney whether he should be required to post a bond, or even oversee a dependent administration. If Kelly’s bad feelings are unjustified, and Bud is, in fact, trustworthy, Peggy and Al should probably question whether being a co-executor would really make Kelly more secure, or whether it would just be creating a nightmare situation for each of them.
In most cases, parents should simply name the child most likely to be a good executor. And children who are hurt that someone else was named as executor should know that I have had more than one client who had a clear favorite among his children, and yet named a different child to be executor.