How to Avoid the Misery of Executing a Will
Acting as executor of a relative’s or loved one’s will can be the ultimate act of devotion. It also can be one tough job.
As the public battles by the heirs of ex-New York Gov. W. Averell Harriman, tobacco heiress Doris Duke and reggae legend Bob Marley have shown, feuding families can make the division of bequeathed property a miserable, thankless task.
One way to make the job easier is to get help, said Nancy Brown, a paralegal in Northfield, Ill., who teaches an adult education course called “You’re an Executor: Now What?”
Whether the estate is a small savings account and a handful of heirloom jewelry pieces or $2 million in assets, the executor’s goal is roughly the same: Pay off creditors and taxes, close out the deceased’s business, manage or liquidate investments and divide up heirlooms and real estate.
Executors who are in mourning should allow for a “cooling-off period” of several weeks before jumping into their duties, said Anthony Grasha, professor of psychology at the University of Cincinnati. “The executor has to recognize they’ll go through a grief reaction themselves.”
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Executors also can minimize problems with good record keeping, including separate files on taxes, correspondence and canceled checks, kept by month, Brown teaches her students. When taking an inventory of the estate’s assets, begin by locating bank accounts and tax returns, Brown said.
It’s also crucial to keep an up-to-date Letter of Authority--the certificate necessary to sell stocks, forward mail, open a bank account or transact any business in the deceased’s name, Brown said. The letter expires in as few as 60 days in some states.
You might be able to avoid court appearances for a procedure called probate if the deceased has written a good will and has set up trust funds. Among other legalities, probate certifies the will and the executor as the actor taking the deceased’s place. Varying by state, probate can cost up to $400 initially, with additional court appearances all requiring a lawyer.
Whether probate is necessary or not, executors may seek professional advice on dividing up belongings and charge the estate for the cost of the lawyer or mediator. Lawyers generally charge by the hour these days, rather than taking a percentage of the estate, as was once more common.
Even with solid preparation and time to grieve, executors can still expect problems. “If you have a number of siblings who have never gotten along their entire lives, there’s no reason to believe that will change,” said Howard Eisenberg, dean of Marquette University in Wisconsin and a professor of trust and estates law.
The best way to avoid acrimony is by seeing the will while the benefactor is still alive, noting in advance the locations of important papers or safe deposit boxes. You don’t have to give your approval to be named executor, so if you suspect you’re going to be named, ask. “Go over the will until you’re satisfied it’s clear,” said William Fried, associate director of psychiatry residency training at Maimonides Medical Center in New York.
In the absence of such a meeting, a “letter of understanding” from the deceased will make dividing the estate easier. “It may go beyond what you’d put in a will,” Grasha said. “Then the executor has external criteria.”
While executors are not permitted to buy from or sell to an estate (known as self-dealing) without a court’s permission, they are entitled to charge the estate a fee ranging from $25 to $250 an hour, or a lump sum of 1% to 2% of the estate’s value.
Although the fees are regulated by law, they can be another source of consternation. “It’s something you get paid for, but it’s a lot of responsibility and a lot of work,” said Brown, who was executor of her parents’ and aunt’s wills.
If you’re not sure you understand the responsibilities of an executor or you don’t have the ability, time or energy to resolve the inevitable conflicts between heirs, Fried recommends you consider opting out.
It may be best to ask a trusted neighbor, relative or legal representative, though lawyers can’t assume such responsibility without informing the family of the full range of options.
Charles Gibbs, a trust and estates attorney at the law firm Chadbourne & Parke, sometimes recommends a joint appointment of an heir and an older outsider who has the respect of the heirs and can solve quarrels and provide an objective voice.
Hostility often arises in families where there have been multiple marriages. “Step-relationships frequently don’t work,” Gibbs said. “Sometimes that’s where it’s better to have an outsider” as executor. Outsiders such as banks, trust companies or financial institutions with trust powers also can carry out a will, especially when there’s a lot of property involved.
While it’s the family feuds that make the headlines, experts said, it’s family members who care who tend to do the job best as executors.
