{Read in 5 Minutes} As a Trusts and Estates attorney, I frequently represent a client who wishes to prepare a Will as part of their estate plan. Incident to — or as part of — this process, we often talk about who the person wants to name as their Executor. The role of an Executor is incredibly important. After someone dies, their Executor will offer their Will for probate in the Surrogate’s Court. This person will also be in charge of identifying all of the assets and paying off any debts that they left behind. And then accounting, and making distributions to the beneficiaries of the Estate; regardless of which opinion you have, it certainly is the most crucial role in the administration of an Estate.
Clients have a broad choice when it comes to naming Executors because there are very few exclusions. In fact, New York recently updated its statutes to give people even more choices. However, if a person wants to name multiple people as Executors, they absolutely may. For example, maybe a client has two adult children and the two adult children are also the equal beneficiaries under the Will. It might make sense for the client to name them as co-Executors, as opposed to selecting one over the other, which may cause fights and/or family drama around the Thanksgiving dinner table.
Sometimes it’s also a combination of personalities. For example, maybe you want two of your very close friends to be Executors. One is more sentimental and will be good at things like arranging your funeral and making distribution of your tangible personal property in your home. While the other might alternatively excel at crunching numbers and handling the business end of managing an Estate.
For whatever reason a client wants, they can name multiple Executors to serve simultaneously if they wish. However, there are three things that a client should consider when doing this.
1. Multiple Executors means multiple salaries.
The Executor is entitled to compensation rendered in New York: (like in many states). We call this “commissions.” If a client names two Executors, that means that they’re going to be two full salaries that the Estate will pay before those Executors make distribution to the beneficiaries. This may also mean that the beneficiaries may receive less because there are more overhead costs than there would be for a single Executor. Note that the law allows for a maximum of two Executors to receive compensation. If, for example, a client wanted to name three Executors to serve simultaneously, the three of them would split two salaries.
2. Make sure the Executors get along.
For fuck’s sake, please do not name co-Executors that do not get along! This will do nothing but lead to gridlock (best-case scenario) or endless litigation where they accuse each other of wrongdoing (worst-case scenario). The mess you could create is worth the f-bomb in this sentence!
Here, an ounce of prevention is worth a pound of cure. This inevitably comes up when some person writes a Will, and they want to leave everything to their two, now adult, children. These kids have not gotten along or spoken to each other in 30 years, and the client believes that if the client names them as Co-Executors, “they’ll finally learn to get along and love each other.” Big mistake. This will inevitably cause a lot of heartache and headaches, and the only ones who will win are the lawyers, who are charging by the hour for all the litigation costs. Be realistic when naming multiple Executors.
3. Provide clarity about when there should and should not be Co-Executors.
For example, the client names two people to serve simultaneously as Co-Executors. What happens if one of them dies before the client does, or is just uninterested in serving? The Will should address what happens in this scenario. Does the other serve as the sole Executor, or does the client want to name successor Executors? And if so, should those successor Executors serve as Co-Executors with the original Executor? Or are they only backups? Clarity is king, period.
The two main takeaways from this article are (1) clients have a lot of choices as far as how many Executors they wish to have served, but (2) they should give this a lot of thought before doing it and make sure it’s the right fit.
For more information on this topic, please contact me.