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Executors to my will are getting older but I don’t want to offend anyone

Q&A: Adding additional executors to act alongside, or as an alternative to, people who have been in place for a long time is sensible, not insensitive

Offering options to people who agreed to act as executor 30 years ago on whether they now need to accept that role is neither selfish nor unfriendly, but sensible. Photograph: iStock

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Dominic Coyle Deputy Business Editor
Tue Jan 9 2024 - 05:15

About 30 years ago, when I made my first will, I nominated two siblings to act as executors, with their permission.

I have retained them in updates but they are elderly now and less energetic and my next update will include the sale of properties and shares and a variety of disbursements.

I don’t want to offend them by replacing them and I wonder if I could insert a clause in my next update with something along the lines of “I nominate A and B as my executors but if they are unable or unwilling to accept the role, I nominate C and D in turn.”

I assume that there is a standard formula of words for this decision.

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But I see a complication in that I can hardly say to C and D that I am asking them to be my executors if A and B opt out.

Mr D O’M.

You’re clearly a considerate person but I think you might be overthinking things here.

The role of executor is not for the faint-hearted, not least because it carries with it certain legal obligations. Executors who are seen not to act or to act incompetently or negligently face the potential prospect of legal action and personal liability.

When you asked your siblings to act as executors 30 years ago, they were clearly willing to do so. It is not at all unusual for siblings to act as executors in a person’s will, but the passing years may well have made them less comfortable with the prospect.

As you say, they are getting older and they themselves may feel they are carrying a burden in this area out of personal regard for you but not one that they feel comfortable in acting upon. Or maybe not; perhaps they are perfectly okay with doing so.

Either way, there are a few things to consider here.

Primary among them is that this is a question of the efficient management of your estate. And the more complicated that might be, the more you need to think carefully about whom you entrust to manage your affairs and the eventual distribution of your assets after any outstanding debt, and tax, is taken account of.

To a certain degree, I would argue, you have a responsibility not to burden executors with work you fear they may not be up to carrying out and also a responsibility not to leave your affairs behind in a position where things are going to get messy for those whom you wish to inherit.

Bear in mind also that it is entirely up to your executors to decide after you die whether to accept the responsibility. They do not have to let you know in advance that they will do.

An executor has three choices when a person for whom they are named in a will as executor dies.

They can accept the appointment and manage the estate – either on their own, with a fellow executor or with outside legal assistance where necessary – they can reserve their right to act, which means they step aside for the time being but retain the ability to step back into the role, or they can renounce the position. This last option means they simply refuse to act and they cannot get involved again at a later stage.

Where an executor renounces their role, any other executor appointed in the will can apply for probate or, in the absence of an alternative, the court can appoint an administrator to manage the function the executor was originally intended to do.

You will have no choice in that decision, but you do have a choice in what you decide to do now, while you are still alive, to try to ensure the smooth management of your estate and the timely taking out of probate and distribution to your heirs.

If you are concerned about the age and ability of your current executors to carry out the role, you can either replace them or add more people to act if they feel unable to do so.

You do not have to inform anyone that they are no longer executor to your estate in your most recent will. You simply nominate whomever you wish to act in that role. Clearly, they will not find out until you are dead so I’m not sure I see where this becomes a tricky situation.

If you have any real doubts about their ability to act in the role, this is what you should do. If you feel so inclined, you can certainly explain it to them but there is no obligation. And, as I said, they may well be very relieved not to be held to a commitment they made 30 years ago.

Alternatively, you can add other executors, either upfront instead of the original executors or alongside them – or to act should your original executors no longer feel comfortable to take on the role. That gives them the option at the time. There is certainly a form of words to put such an arrangement in place and your solicitor will no doubt be very familiar with the position.

And I see no reason why you would not explain to C and D, as you put them, that you have added their names both for your reassurance and for comfort to the original executors should they decide the role is beyond them. It is not an unusual position.

Having been there, I’m not sure anyone is gagging to be an executor. If C and D find their services are not required, I don’t think they are going to see this as a breach of friendship or trust.

The main thing is that you appoint people you trust to manage your affairs efficiently and as you intend so that your assets pass on to those you have chosen. That is what you want to keep at the front of your mind, not a fear of upsetting people who might well be highly relieved not to be expected to take on the responsibility.

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

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