Dealing with the loss of a loved one can be an emotional and stressful time. At a time like this, you need the winding up of their estate to be as simple and straightforward as possible. But sometimes, if there are multiple executors appointed in a deceased person’s estate, tension between executors can result in arguments and disagreements. This can halt the progress of the estate. So, what can you do if executors don’t agree?
In the first instance, every effort should be made to come to a decision that all executors can agree to. If that isn’t possible, it is important to deal with any disagreements quickly. This will avoid any unnecessary costs to the estate and ensure that deadlines, such as payment of tax due on the estate, are met.
Decisions can be made by a majority
It is quite common for an estate to have more than one executor. In fact, it is often recommended that an odd number of executors (more than one) should be appointed. The main reason for this is that, in Scotland, executors can make a decision by majority; all executors are not required to agree unanimously to a decision. Having an odd number of executors should make decision making easier. Hopefully it will avoid coming to a complete standstill where executors are evenly split on the best way to proceed.
Before any decision is made about the estate administration, all executors must be invited to give their opinion and have the opportunity to make their views known on the matter. For example, consider a situation where three executors are deciding whether to accept an offer for property in the estate. As long as all executors have been given the chance to make their views known, if a majority agree to the offer, they can go ahead and accept it. However, if there were only two executors in that situation who cannot agree, the offer cannot be accepted until an agreement can be reached.
What if agreement cannot be reached by majority?
If there are an even number of executors who disagree, or no majority decision among an odd number of executors, the executors will then need to consider how to take matters forward. If their failure to agree stalls administration of the estate for too long, they could face complaints or claims by disgruntled beneficiaries. The executors therefore might wish to appoint an independent executor to progress the administration of the estate, and the existing executors resign. The independent executor might be an individual known to the executors but not directly affected by the decision, or it might be a professional executor, such as a solicitor.
Alternatively, if they cannot agree on a suitable independent executor, they could apply to the court for appointment of a Judicial Factor to finalise the estate administration. However, a Judicial Factor can be expensive for the estate, and the executors should make every effort to resolve the matter without resorting to this.
All executors are entitled to take their own independent legal advice. It is, however, up to the individual executor whether they seek their own independent legal advice.
Intervention by the court
Executors should always act in the best interests of the beneficiaries. If an executor believes that the other executors are making decisions by majority which are not in the interests of the beneficiaries, they could raise a court action. However, the court will only intervene if the majority’s decision would likely have a negative impact on the estate or is not in the interests of the beneficiaries.
It is possible to have executors removed by the court, but an executor who simply disagrees or delays the process cannot usually be removed without some other good reason. Applying to the court to have an executor removed should be thought of as a last resort. It can be time consuming and expensive. There is also no guarantee that the court will remove the executor.
When drafting your will, the best way to ensure your estate is dealt with smoothly is to think ahead and consider the potential for disagreement among executors. As mentioned earlier, it is sensible to appoint an odd number of executors. This will make it easier for a majority decision to be reached if there are disagreements. You should think carefully about who you appoint, and consider if they are likely to work well together as executors.
If you only have an even number of executors that you wish to appoint, or if you feel your executors may be likely to disagree on matters, one possible solution would be to appoint a professional executor in your will. A professional executor, such as a solicitor, doesn’t have an emotional connection to the deceased. This means the professional executor can make impartial decisions with the beneficiaries’ interests at the forefront.
We can advise you on all aspects of administering an estate. Please contact one of our personal law solicitors and we will be happy to help.
The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.