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Avoid Probate, Common Estates, Disputes, estate, Estate Administration, Estate Planning, Estate Property, Executor, Family Relationships, Final Arrangements, Lawsuits, probate, Probate Avoidance, Relatives, testator, Testator-Executor Relationship
Essentially, an amicable and collaborative testator-executor relationship is an important element of an estate plan. In many common estates, the testator-executor relationship is simple: the testator creates the estate plan, and within that plan, appoints an executor to execute it. Generally, in this realm, testators will create their estate plans and expect the chosen executor to execute it without question. This type of planning, however, puts executors in a bind if the estate plan proves to be disastrous. Additionally, many named executors fail to understand that they can refuse to serve as executor as mentioned in the article, Can I Opt-Out from Serving as Executor? As a result, named executors feel they have no recourse and remain exposed to a possible turbulent estate administration. To protect themselves, named executors should approach their testators and forge a collaborative relationship before accepting an offer to serve.
Ways an Executor can Ensure a Manageable Administration
Basically, named executors can protect themselves from a poor estate plan by requesting a conversation with the testator. While discussing the estate plan, the executor should request that the testator consider additional planning to ensure a solid plan. According to The Executor’s Guide, 5th edition (Nolo, p. 19), the following five factors need consideration:
- Organization. The testator should organize all documents related to the estate and make them accessible to the executor.
- Probate Avoidance. Owning property in a way to avoid probate is straightforward. Therefore, the testator should hold as much property as possible in such a way.
- Family Relationships. The testator should explain the estate plan to family members and ask them to accept it. Usually, this will help to resolve future disagreements.
- Final Arrangements. Put in writing all wishes concerning the final arrangements.
- Lawsuits or Disputes. Settle all lawsuits or major disputes.
Essentially, if the testator agrees to additional planning, then the executor should expect a manageable administration. Otherwise, the testator-executor relationship wouldn’t work and the executor should consider declining the offer to serve.
The Testator-Executor Relationship and Relatives
Typically, in common estates, testators choose relatives to serve as executor such as children or siblings. So, the executor will usually serve without question because of the personal relationship. This creates a relationship that is cordial, but lacking collaboration. To make the relationship collaborative, the related executor should still respectfully ask for a conversation about the estate plan. After all, the objective for the executor is to avoid a poor estate plan regardless of the relationship with the testator. Ultimately, if the testator-executor relationship is amicable and collaborative, the estate plan will be solid and the administration will be manageable.
Was this article helpful? Is the article clear on defining the testator-executor relationship? Do you understand why a cordial relationship between the testator and the executor is a necessary element of the estate plan? Share your questions or comments in the comment box below.
Reference
Randolph, Mary J.D. (2012) The Executor’s Guide, 5th edition. Nolo.
Recommended Reading
Executor’s Guide, The: Settling a Loved One’s Estate or Trust
Sadly, not all Testators discuss their plans with the Executor that they have chosen and indicated in their Will.
I found out that I was the chosen one (Executor) after my mother passed. My father had passed several years earlier. My parents had mirror Wills.
Regardless, I am mired in a Beneficiary and Lawyer misconduct situation. Mind you, it hasn’t been very long, only 15 years. Ontario Canada.
Lawyers-don’t talk to me about lawyers.
Hi Rob,
Your situation is the reason I wrote this article. Of course, not your situation specifically, but it’s happens more often than not in common estates. The problem is that people receive bad advice while creating their estate plans or create poor estate plans on their own. Additionally, most named executors don’t understand what makes a good estate plan or understand that they can approach the testator to discuss the plan. So, this article raises the red flag to named executors that they can approach the testator and demand a discussion about the estate plan. If the plan doesn’t follow basic estate planning rules, they can insist on additional planning. It’s a way for named executors to protect themselves from a poor estate plan. Unfortunately, I fell into the same trap. Although my testator did discuss the plan with me, I simply didn’t understand the rules of probate or listing beneficiaries. So, I didn’t realize I was in for big mess until I discussed the matter with an attorney. Hopefully, this article will help future executors by letting them know it’s okay to approach the testator and to make sure they at least used some basic planning techniques to avoid disaster. At minimum, they’ll at least know what they are in for and can prepare accordingly. Also, it’s important to let future executors know that they don’t have to serve regardless of their relationship to the testator. They have the power to say, “If you don’t discuss your plan with me and follow basic planning rules, I won’t have the time to competently serve.” End of story.
On another note, once lawyers get involved in the estate, the lawyers usually make out the best. Based on what you hinted, it seems like your estate is going down that slope. I hope I am wrong and things work out well for you and the estate.
Robert