Submitted By: Gienie Assink, Springfield, Oregon
You’re the star of your will, but there’s a big supporting cast!
Your will contains a list of names, starting with your own. The other people and organizations you mention either receive property when you die, or have specific jobs to do. While almost anyone would be delighted to be on the receiving list, you ought to be sure the people you’re asking to carry out your wishes are willing and able to play their parts.
Choosing an Executor
While beneficiaries don’t need any special skills to qualify for inclusion in your will, executors do. The job of collecting your assets, paying your bills, and resolving legal and tax issues can be complicated and time-consuming. That means you should get the consent of the person you want to fill the executor’s role.
You should also name an alternative executor, should your first choice be unable or unwilling to do the job when the time comes. Otherwise the choice will be left to the probate court.
A spouse, child, or close friend is frequently named executor, and should be able to handle the task if he or she is comfortable managing legal a financial issues. It’s an added advantage if he or she can work with a family lawyer.
With complex estates, however, or wills which might provoke controversy, it’s often best to name an executor with professional skills. One solution may be to name joint executors, a professional, and a family member or friend.
Conflicts of Interest
If you want your will to resolve—not create—controversy over your estate, you should consider potential conflicts of interest in naming your executor. Problems arise most often when the executor’s responsibility to act in the best interests of the beneficiaries competes with his or her own best interest.
For example, if you executor was your business partner and your will specified the business should buy out your share, how would the executor set the price? Would the goal be to add the most, value to your estate or pay the least the business could get away with?
Similarly, you might create bad feelings, or even spark a contest to your will, by naming one of your children both executor and primary beneficiary of your estate. Though the conversation could be a painful one, many experts advise against explaining the contents of your will to your family while you are able. Taking that precaution could prevent conflict after you die.
Picking a Guardian
Children who are minors—those under 18 under the laws of most states and under age 21 in the rest—need guardians if their parents die. A guardian has custody of the children and makes the decisions of daily life: Where the children live, go to school, receive medical care, and spend their vacations, are just a few of the issues. If you and your spouse each name a guardian—hopefully someone you agree on—in your will, your children should be provided for should something happen to both of you.
The primary factor for most people is naming a guardian who will raise your children as you would yourself. Your choice might be a relative or a friend of yours, or even an older sibling of the children’s, who will provide a good home. Someone they are already comfortable with is probably a good choice, though experts advise against naming a grandparent because of the age factor.
Since raising children costs money, you should consider a potential guardian’s financial situation as well as his or her personality before making a decision. Of course, if you leave a large estate or a lot of life insurance, the issue might be how well the guardian would manage the money. While you can name a different person to hold the purse strings—as guardian of the property or trustee of a trust created by your will—such an arrangement can cause complications unless the two are able to work comfortably together.
Your Will isn’t the Law
In some cases the probate court may overrule your choice of guardian and name another person. Relatives can also contest your will to have the guardian you name replaced by someone else, often themselves.
While there’s no way to prevent either situation, the more logical your choice and the more direct you are with relatives who might potentially object, the greater the chance your wishes will prevail.
The most difficult situations are often those that involve divorced parents, or parents who disagree about who should be named. The one thing you can be sure of in such cases is that the legal battle will be long, expensive, and probably damaging to the children.