Careful consideration should be given as to whom you wish to appoint as the executor of your estate to avoid costly litigation and disputes on your death.
If more than one executor is appointed, you should consider whether the persons named get along. In many cases, a conflict may arise between co-executors which is likely to cause issues with the due administration of your estate. If this occurs, applications may be made to remove one or more of the executors.
Disputes with Co-Executors
If the co-executors are involved in a dispute and an application is made to remove them, the existing executors may be removed from their position and a new administrator appointed.
Accordingly, if there is likely to be a dispute between co-executors, one of the executors could consider renouncing at the outset.
Where the co-executors and beneficiaries are in conflict, the Court may also decide that it is more appropriate to appoint an independent administrator. Normally solicitors are proposed as independent administrators.
Solicitors are impartial and removed from the family dispute (unless of course, the solicitor is part of the family). Evidence needs to be filed in Court as to the fitness of the independent administrator.
Costs
The Court has discretion as to who pays the costs of the proceedings. Normally, if an applicant is successful, they are entitled to have their costs paid.
For instance, if the Court makes orders removing the executor, the executor may be ordered to pay the applicant’s costs. By contrast, if the executor successfully defends an application to remove him or her, then the applicant may be ordered to pay the executor’s costs of the proceedings.
If an application by a co-executor to pass over another named executor is unsuccessful, the co-executor may be ordered to pay the costs of those proceedings personally.
If you are faced with a scenario where there are two co-executors who do not get along, this may result in delays in the administration of the estate. An experienced lawyer can assist you with finalising the administration of an estate. If you wish to discuss your particular circumstances, please call our experienced team on (02) 9101 7000.
By Maree Harris – Special Counsel
More on Wills and Estate Planning
