ARE TWO HEADS ALWAYS BETTER THAN ONE?

A number of my clients express a desire to name two of their children as the executor of their Will. The primary reason clients tell me that they want to name two – or more – of their children as the executor of their Will is the fact that they don’t want to hurt a child’s feelings. Maybe the client has two children, so if the client names both as executor (co-executors to be precise), then neither child will feel left out.

Now, as those of you who read my column on a regular basis know, I am a very big believer in the concept that a person’s Will should reflect their true wishes. Furthermore, I believe, a person’s Will should carry-out their wishes in a manner that gives the client the greatest possible peace of mind. Sometimes, this latter goal – peace of mind – comes with a price. Sometimes, for instance, peace of mind means that the Will is not as efficient as it could be.

What do I mean by this? Just this: I do not believe that naming co-executors is as efficient – in most cases – as naming one person to serve as the executor of a Will. If you name co-executors, then the executors must perform all of the duties of the executor in tandem.

Both executors would have to go to the surrogate’s office to have the Will admitted to probate. Both executors would have to sign all of the checks drawn on the estate’s bank account. If the decedent owned real estate and the executor was selling that real estate, then both executors would have to sign all of the documentation relating to the sale of the real estate. If accountings or other reports are to be submitted to the court or the beneficiaries, then both executors would have to sign-off on those accountings/reports.

In short, both executors would have to perform all of their duties as one. And, that need to act in unison can prove to be cumbersome, particularly if the co-executors live in different states. Since most of my clients want to eliminate any hassles that might be associated with their passing, the possible burden of having co-executors often deters my clients from naming co-executors.

A solution that I offer my clients is to name alternate executors, as opposed to co-executors. Naming two or more children as alternate executors means that one child serves as executor and only if that child cannot serve as the executor would the other child serve. Naming multiple children as alternate executors is extremely beneficial and allows the parent to name all of their children as an executor, accomplishing the parent’s goal of not leaving any child out of the Will.

More than eliminating the hassles of having to work together, naming alternate executors means that it is highly unlikely that all of the executors will either predecease the testator or be unwilling to serve as the executor. For instance, if you name three children as alternate executors – in all but the rarest of cases – you will have someone who will serve as your executor.

The same concept applies to naming agents under a general power of attorney for financial decisions. If you have a power of attorney – and if you don’t you should – naming multiple alternate agents ensures that someone will always be there to make financial decisions for you, if you cannot do so for yourself.

With a health care power of attorney, by law, you can only name one agent, as opposed to co-agents. So, naming alternate agents is the only way of accomplishing a parent’s goal of not leaving any child out.