Dealing with the estate of a loved one can be a very challenging time. Emotions are running high and this can make it easy for tensions to arise. The executors may disagree about how the estate should be managed or distributed and it can seem impossible for the conflict to be resolved. Failure to agree can lead to delays in the administration and distribution of the estate. The law provides several ways to deal with disagreements between executors. If you are finding it challenging to come to a decision as a group of executors this article may help.
To reach a decision executors in Scotland are not required to agree unanimously. Therefore, it is good practice to appoint an odd number of executors in your will so that if disputes arise they may be resolved by a majority decision. It is important that all executors have the opportunity for their views to be heard before making a majority decision but it can delay the administration if executors have opposing views. A majority decision only works if there is an odd number of executors or a majority in favour of the same outcome. Where two executors disagree there are other options for reaching agreement.
If agreement cannot be reached the executors may decide to appoint an independent executor to take over the administration of the estate. The independent executor could be a professional, such as a solicitor, or someone who is not as closely connected to the parties involved and is therefore likely to be more impartial. Once an independent executor has been appointed the other executors may choose to resign. Where executors cannot agree who to appoint as an independent executor they can apply to the court for the appointment of a Judicial Factor. However, appointing a Judicial Factor can incur significant additional costs for the estate. It is always best for the executors to try to reach agreement before pursuing this option.
If one or more executors are unhappy that decisions are being made by a majority, or they consider that the decisions which are being made are not in the best interests of the estate or its beneficiaries, they may raise a court action for intervention. This should be seen as a last resort after all other attempts to reach agreement have been explored. Once an application has been made the court will only intervene if it agrees that the decisions are having a negative impact on the estate or are not in the beneficiaries’ best interests. Court intervention is likely to result in further delays and additional costs to the estate.
The role of executor can be a daunting task. An executor has many responsibilities and is required to make many important decisions. If you are an executor who is having difficulty reaching agreement with your co-executors, has concerns that your co-executors are making decisions which are not in the best interests of the estate or its beneficiaries or would like to learn more about your responsibilities as an executor you should seek specialist legal advice at the earliest possible stage. We can help.
Jennifer Gray is a Senior Executry Paralegal and deals with all aspects of executry administration and related tax matters. If you have any questions about this article or the issues covered here, please complete our contact form or call us on 0131 225 1200.
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