Matters Upon Death: The Executor Problem

The Executor, not to be confused with an executioner, is generally someone who is responsible for following through with (administering) an assigned task or duty, specifically based on the wishes outlined in a Will and in accordance with all applicable laws. To be named an Executor is indeed a great honour, which echoes “a great responsibility”. There is much work involved in the administration of a Will, it is complex and time consuming. It is important as an Executor to understand the financial and legal implications. Namely the oath to “faithfully collect, get in and administer according to law the real and personal estate effects of the deceased.”  Failure to do so which, for example, results in a loss to the beneficiaries renders the Executor legally liable for the amount of the loss. So it is highly recommended that you select an Executor who is trustworthy and reliable; but why one? Why not two or three Executors?

The Executor problem arises when the Executor, Executrix (fem), dies before the Will is Probated or the estate is fully administered. 

Samuel came into my shop looking like Charlie Brown after a turn on the mound, you know, clothes all knocked off by the returning baseball, all in a daze. I too was in a daze unsure how all that hair could have grown back in less than a week’s time. I wouldn’t say it out loud but he looked worse than when I saw him after his uncle’s death almost a year ago.

Puzzled, I dusted off my chair and gently guided him by the shoulders to sit down. Mid way through the cut and his shoulders slumping even more than I thought possible, he finally came out with it. The Executor to his uncle’s will, his uncle’s closest friend, his Godfather, had passed away some weeks before and he just got the news through his uncle’s lawyers. The death was bad enough on its own but he learned that his Godfather was the sole Executor of his uncle’s Will and his death put a halt to the distribution of his uncle’s estate. No Executor, no distribution of gifts, no payment of debts, no closure.

Again I felt his daze wash over me, the Executor of my will is my wife, who else could I trust more? But what if she was to die before me, or soon after? Would the wishes we carefully laid out in our Wills stall? What burden would be unleashed on our family and other beneficiaries? Later that night at the dinner table I unloaded the day’s happenings on my wife. She listened patiently then burst out in this Cheshire smile, mocking my grief. This was not unusual, I am very accustomed to her laughing at my despair. She often talks about my negative disposition saying it’s like an invisible hump on my back pushing my left shoulder closer to the ground than my right. She said simply, after putting away her grin, “It’s a good thing we’re both alive for this next lesson of life.” To me this meant, relax and watch for the grace to unfold, apparently it always does.

Another eventful week would pass before I caught sight of that smile again, this time at our lawyers’ office. My wife had made an appointment for us to review our Wills, as we sometimes did whenever our circumstances changed, and sign a Codicil. Although we had Wills in place for the last eight years, we had never made an amendment, never had to create a Codicil as our lawyers explained we might have to. She sat next to me beaming like she knew something I didn’t know, and obviously this was true. Our lawyers came in read over our Wills and we agreed all was in order, then they read the Codicil:

 I appoint my wife, ESTELLE GEORGE, and brother, ANTONIO SHOAN, as the Executors of this my Will. In the event that my Executors, Estelle George and Antonio Shoan, are unable to act on my behalf, I appoint YVL Firm,  Attorneys-at- Law to act on my behalf as my sole Executor of this my Will. No bond or other security of any kind will be required of any Executor appointed in this my Will.

“A simple and elegant solution”, she pronounced and they agreed. What was I stressing about? With life, solutions abound. In our brief meeting the lawyers explained that this would avoid any additional burden to the beneficiaries should one or both of our Executors either died before us or passed away at any stage of the Probate and Administration processes.

Appointing multiple Executors and giving them instructions in your will avoids the sole Executor problem. But how to solve it. Samuel’s only option is to wait for the Probate of his Godfather’s estate when what is referred to as a ‘chain of representation’ is established. This allows the Executor in Samuel’s Godfather’s estate to complete the administration of his uncle’s estate.

A Will with more than one Executor, especially one naming a company or law firm avoids the Executor problem. Should one Executor die at anytime, the other only has to account for  the death by providing the court with the person’s death certificate and continue with the Probate or Administration as usual. With a company or law firm, this is not necessary as anyone with signing authority or an associate of the firm may complete the Probate and Administration.