This section is not intended to help you write your own will. Some items which may be discussed here may constitute things you might want to think about before going to see an attorney. Other items may be quirky considerations that struck me as funny. Or, they may just be unusual things that have come up in the past. You are advised to obtain competent legal counsel prior to drafting any will or testament.

When you do see an attorney, your attorney should, of course, listen to what you want. If your attorney does not know that you want to provide for your pet upon your death, or guarantee that your sister is not appointed the guardian over your children, then how can you make sure such things do (or don’t) happen? Listening therefore, is key. For your part, you too should be prepared to listen to your attorney. Indeed, while I have had clients who seem to show me too much deference, to the point of asking me how they should split up their property, or not wanting to actually read any of their documents, I am sometimes surprised to have clients show resistance to the oddest things which are necessary to the will-making process. So, before coming in, think about possible answers to the following questions (some of which are admittedly simplistic):

Q: Where should I safeguard my will?

A: There are several good places to keep your will, and even more bad ones. A home safe is one of the worst, unless there is plenty of access to it by others. Texas counties allow “safekeeping filings” and that’s a good place to keep a will, so long as loved ones know about it. Safe deposit boxes are also a good place to put a will. The law allows banks to open the box to allow an executor to obtain a will kept inside.

Q: At What Age should I let someone inherit in my will?

A: This answer depends upon the purposes which you want to accomplish in the will. Do you wish to keep the money safe from a spendthrift? Or provide for a child’s college education? Or perhaps make provision for a subsequent, unforeseen illness and recovery? Most clients say that 18 is too young; others feel comfortable with allowing a child to inherit free from restriction at the age of twenty-five. It’s your will and your family–you make the choice.

Q: Do I want my life insurance policy to “pour over” into my will?

A: It depends on what you want to do with it, of course. If it all goes to your spouse, then having him or her named as a beneficiary on the policy itself will speed up the “time it takes” to obtain this valuable asset. If you anticipate putting restrictions on the use of the insurance benefit, then such may be accomplished through a will and so the policy should, in such cases, “pour over” into the will.

Another example of a good question to ponder is the old probate adage: Avoid dividing ownership in real estate. Certainly, if you own real estate at your death, it is almost always best to either leave the entire property to one person, or to a trust, or to order that the property be sold and the assets divided. But from time to time, you have compelling reasons not to award real estate to just one person. Talk with your legal counsel to see what best fits your circumstances.

Q: Why it is a bad idea to make your children co-executors

A: While Texas allows you to name co-executors to probate your will, it is almost always a bad idea. Money often (there is a strong temptation here to say “invariably”) makes enemies of the best of friends. Put only one in charge, if possible.

Q: I have given a power of attorney, I don’t need a will anymore, right?

A: A power of attorney may be viewed as a mirror image of a will. Whereas a will is not valid until death, a power of attorney is generally valid immediately and dies when you die. In sum, you may need both to adequate take care of contingencies involved in your estate. In this connection, it is rarely wise to give a power of attorney to a non-spouse unless trust and family harmony are absolutely inviolate. An adult child with a parent’s power of attorney, can destroy the estate even before they’re gone. That is not the key to famly harmony at the furneral.

Q: We are not going to have any more children. Why should I list what will be inherited by children born after my will is written?

A: No one never knows what they don’t know. I guess if you and your husband are 70 years old or more, then it’s a safe bet to exclude after-born children. But I’ve seen dozens of times where grandparents have adopted their wayward son’s unwanted child, as their own. An adopted child is a “child” for purposes of inheritance.

If you die without a will, the state of Texas has thoughtfully written one for you. Not really, but the state imposes certain rules of inheritance in such cases. This is known as “dying intestate.” We call the laws governing the division in such instances “intestacy laws.” If you are a lawyer, it seems pretty straightforward. Joe dies, survived by his wife, Judy, and their three children. He has no children with anyone but Judy. Judy gets all of the community property. Joe also had some land and stocks he got from his parents. Judy gets one third of the stocks. The remaining two- thirds are split evenly among the three children. Judy gets a life estate in one third of the inherited land. The children get the rest of the inherited land.

Juan dies survived by his wife, Linda, their daughter, Sophia, and Juan’s daughter from an earlier marriage, Debbie. Because Juan had a child who was not also Linda’s child, Linda gets the one half of the community property she already owned. Juan’s one half is divided equally between Sophia and Debbie. Juan also had a collection of gold coins that were given to him as a gift, and a rental home that he owned before the marriage. Juan, Sophia and Debbie equally divide the coins. Sophia has a 1/3 interest in the rental home during her lifetime, and, at her death, it is equally divided between Sophia and Debbie.

Dolly has no children. She is survived by her husband, Al. Al inherits all of their community property, and all of Dolly’s separate, personal property. The house Dolly owned before their marriage goes one half to Al, and the other half is evenly divided between Dolly’s parents, or, if her parents are dead, the other half is divided among Dolly’s brothers and sisters. Orlando dies with no wife. His children evenly divide all his property. If he has no children, his parents inherit. If he has no parents, his siblings inherit. If he has no siblings, his nieces and nephews inherit. If he has no nieces and nephews, one half of his property goes to his father’s parents and their descendant’s, and the other half goes to his mother’s parents, and their descendants. And on it goes. If Orlando truly has no lineal ancestors leaving descendants, the state of Texas, ever helpful, steps in and collects. When this happens, we say the property escheated to the state. As you can imagine, this does not happen often. When it does happen, it is most often small bank accounts or a patial interest in land that is not very valuable. The more property people have, the more their relatives seem to keep track of them, and the more friends seem to be around to assist in trasporting them to a lawyers office to write a will.

If you are thinking that that sounded pretty simple, than, as you can imagine, I have not explained all the heirship possibilities. A surviving spouse is entitled to certain properties which will be the subject of a later blog. Also, critical is the fact that, without a will, you must have a court proceding to determine who the heirs, under the applicable statue, should be. This means an aditional action, called a proceeding to determine heirship, which I will also go into in a seperate entry. It also requires, in many circumstances, a dependent administration, which I will also go into in a separate entry.

In sum, if there is any property which will need to be legally transferred at your death, I can think of no circumstances where not having a will will not cause additional headaches and expenses to your heirs. And in many cases, it can result in your property being divided in a much different manner than you would have wanted. If only you had gotten around to telling everyone how to divide your property at your death. Perhaps by writing it down and signing it in front of two witnesses, and a notary, and with the guidance of an attorney. If you have questions regarding this, or another matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment with an attorney. Visiting this blog does not create an attorney- client relationship. Information should not be considered legal advice.

Although I regularly advise clients not to appoint their children as co-executors, I have a lot of sympathy for heirs who are not appointed executor, and feel that they have been left out of the loop. Trust this advice, being a co-executor with a trustee who you think is cheating you, will often not increase your recovery in probate , but will most certainly increase the lawyer’s fee. So, while most executors are honest, there are enough bad examples to listen carefully when someone sits across from my desk and tells me that they think their sibling or step parent is cheating them in probate. In such a case, there are remedies.

The first step is usually to take a close look at the inventory and appraisal. Executors are required to file an inventory and appraisal of all the assets in an estate within 90 days of being appointed. It is possible to get an extension on the 90 days, but in the vast majority of cases, an extension is not sought, and the inventory is either filed or delinquent by the 91st day. If there are assets that my client is aware of that were not included in the inventory and appraisal, this could be the first sign that the executor is not acting in good faith. I do, however, caution my client that life insurance policies and accounts that have passed by beneficiary designation or right of survivorship will not normally be located in the inventory and appraisal.

If the executor has either not filed the inventory and appraisal, or has filed a clearly fraudulent one, it is possible to ask the Court to remove the executor. Frequently, however, it does not get that far. I have had an executor file an amended inventory and appraisal, and cut checks to the other heirs within three days of my first contacting the executor’s attorney. An attorney contact does not always produce such dramatic results, but commonly, when the executor discovers that the other heirs have retained their own attorney, he is suddenly much more cooperative about listing and distributing assets in a timely manner.

The Texas Probate Code also allows any person interested in the estate to demand an accounting from an independent executor fifteen months after the administration is opened. The accounting must list all property belonging to the estate, and must list what the executor did with the property. The executor is also required to list all the debt that have been paid, and any debts or expenses that are still owing by the estate, and any property still being held that belongs to the estate. The accounting must also include any facts which would justify the failure to fully distribute the estate. The executor must also include “such other facts, as may be necessary to a full and definite understanding of the exact condition of the estate.” If the executor does not send a sworn accounting within 60 days, he may be taken to Court and the Judge will order the accounting.

If two years have passed since the estate was opened, an heir may petition the Court to order the assets of the estate distributed.

If an executor fails to comply with any of the provisions above, any interested person, or the Court on its own motion, may seek the removal of the executor. Costs, expenses, and attorney fees of incurred in seeking removal of the executor may be paid out of the estate.

An heir may also bring a suit for damages for failure to deliver property when ordered. The Court will then enter an order finding the executor liable for the original amount due, plus ten percent for each month after the date of the demand.

Unfortunately, if the executor has spent the money and is now judgement proof, it can be difficult to collect. For this reason, if you suspect that an untrustworthy executor has been appointed, it may be in your best interest to hire an attorney to represent you immediately. By communicating with the executor’s attorney, and making sure that the executor follows the requirements of his position, it may be possible to prevent a fraud from ever occuring.

If you would like representation in an estate for which you were not appointed executor, please contact my office at 936-435-1908 to schedule an appointment in our office in Huntsville or The Woodlands. Sugar Land or Stafford clients may contact our office at 281-723-2791. We represent clients from Magnolia, Montgomery, Spring, Klein, Humble, Conroe, Huntsville, Sugar Land, Stafford as well as other areas located in Harris Brazoria, San Jacinto, Trinity, and Montgomery Counties.

“Dependent Administration” words which sometimes send a chill down the spine of an administrator who pictures himself or herself trudging a weary path to the courthouse steps (and even a wearier path to the pawnshops, to determine which estate assets should be sold to pay the mounting legal costs). Many imagine a humming estate lawyer browsing a brochure of the latest yacht models (in anticipation of a fat fee). If you are reading this because an attorney just told you that you will need a dependent administration, dry those eyes! It isn’t usually that bad.

On the other hand, if you are reading this because you have heard that dependent administrations are bad news, and you do not want your heirs to have to deal with one, and you are also looking for the best way to avoid it, then you are in luck. A dependent administration is usually easy to avoid. Clearly the easiest advoidance measure is to have a Texas attorney draft your will. Over 90 percent of dependent administrations occur based on two circumstances: 1) there was no will; or, 2) the decedent tried to save a few hundred dollars and used a will that was not drafted by a Texas attorney. There are few, if any, Texas attorneys who could not at least avoid this pitfall for you–nevertheless, I have seen but a few do-it-yourself wills that could.

But I don’t want to dodge the question. A dependent administration is the probate procedure that you ocassionally hear about on the radio, striking fear into the hearts of retired and elderly everwhere. A dependent administration is a type of probate proceeding wherein the Court oversees every aspect of an estate. In most cases this means that the executor or administrator must post a bond, hire appraisers, submit an annual inventory, petition the Court for permission to sell any property or distribute any assets, and file a final report with the Court. If you do not trust any of your heirs to honor your final wishes, you may even want to require a dependent administration. I have successfully petitioned the Court to require one where there was a high level of distrust between the heirs and evidence of bad faith. However, if you do have someone you trust as your executor, you will want to allow them to be an indendent administrator, which will minimize the time and expense of probating your will after your death.

There is no way to tell you exactly how much a dependent administration will cost, as much depends on the amount of work involved. If the estate’s assets are all pretty “liquid” (easily exchanged for cash), it is sometimes not that bad at all. If multiple motions and hearings and accountings are required, and one of the other heirs is distrustful or actively fighting the administrator, it can cost a substancial portion of the estate. Of course, you have the protection of the Court needing to approve the attorney’s fees. But you have to pay for the attorney’s time in getting the same court approval, so it is a bit of a two edged sword.

Finally, a great way to avoid a dependent administration is to have all the heirs agree on an independent administration, and agree on who should be appointed.

If you have any questions regarding this, or any other legal matter, please contact my office at 936-435-1908 or 281-723-2791 to schedule an appointment. Visiting or reviewing this blog does not creat an attorney- client relationship. Information found here should not be considered legal advice.

Andy and his wife bought a home in Mayberry, Texas. After their son, Opie was born, Andy’s wife passed away. Andy was heartbroken. He didn’t like dealing with the funeral and all the well-wishers, and when it was all over, the last thing he wanted to do was go see a lawyer and probate his wife’s estate. So he never did. His wife really hadn’t had that much. Most of their accounts were joint, and Andy continued to live in the house, and slowly paid off the medical bills that had accumulated during his wife’s illness.

Andy lived a long, life, and after he died, Opie married and continued to live in the house. Like his father, he never quite felt up to going through the court process. Now Opie needs to go into a nursing home, and he has a buyer for the house. The problem is, the house is still in his father and mother’s name. Opie, who is not really up to these things anymore, is given the task of probating not one, but two estates. And his lawyer tells him that he needs to find two disinterested people who knew his mother and can swear to how many children she had and how many times she was married. Opie didn’t even know his mother. A task that would have been easy for Andy to handle soon after the death, now seems overwhelming for Opie.

Soon after a loved one’s death, the task of seeing a probate lawyer, and going to Court may seem overwhelming. But like most things in life (or in probate), the task never gets easier simply because it is delayed. As I often handle probates I try to be both sympathetic and understanding to clients who have lost loved ones. Just know this: the State of Texas has made the probate process as simple as possible. Your first appointment to the lawyer can be very short, and only needs to cover a few, basic matters. Many clients find it a great relief to know they have someone they can call with the inevitable legal questions which arise. In almost all cases, there is just a single hearing before a Judge, and we will you a “rehearsal” of what will be asked of you in advance. The probate judges in Harris, Walker, Brazoria, and Montgomery Counties are all understanding. Together, we will walk you through each step of the process, and will handle most details for you. If you have been delaying the probate of a will, please call for an appointment in Huntsville, Conroe, or The Woodlands, Texas, at 936-435-1908. Sugar Land or Stafford residences may contact us at 281-723-2791. Let us help you put this worry behind you.

There are a lot of wills located in safe deposit boxes across the state of Texas. And as long as your beneficiaries (or heirs) know that you have a safe deposit box, and where it is located, then this is a great place to keep your original will. The Texas Probate Code allows representatives of a bank to let a spouse, parent, or adult child of a deceased person to search the safe deposit box for a will. They should remember to bring a certificate of death to the bank. And if a will is found, the bank can release it to either the named executor, or to the Court, after making a copy and obtaining a receipt. Banks are required to keep the copy of the will for four years. If a financial institution refuses to allow a search, then Texas Probate Code Section 38B allows a probate court to order a search of a safe deposit box. Under these circumstances, the court sends a representative who accompanies the bank representative and the person searching. If a will is found, it is then submitted to the Court. When a court order is used, it makes it highly unlikely that a will kept in a safe deposit box will be “lost” by a disappointed heir.

At one time it was common for attorneys to keep original wills with their business files, and give their clients a copy. I originally thought, cynically, that this was to ensure that the attorney who drafted the will also got a fee for probating it later. However, I have had enough of my own clients ask me to keep original wills to understand that clients also expect to benefit from this arrangement. I always refuse to keep the original will because I don’t believe doing so benefits the client. Attorneys die just like other people. They also move, retire, or change professions–and yes, lose things. And so what happens to client files? The most colorful experience I had with this was attempting to track down an original will where the attorney had been disbarred and then moved to Las Vegas. I found his old partner, who directed me to the attorney’s last operational office. The old landlord then told me that the attorney had skipped-out on his rent, and he had burned all the boxes and boxes of files the attorney left in the office. Needless to say we did not recover that will. Fortunately, we were able to give ample evidence as to what had happened to it, and the Court allowed us to probate it as a lost will. Do not leave your original will with your attorney.

Texas Government Code 118.062 provides that the County Clerk can charge you a nominal fee for keeping your will for “safekeeping filing.” A safekeeping filing is an ideal solution. Just keep in mind, few heirs know about this procedure. Therefore, if you do not specifically tell your heirs that your will is filed with the County Clerk’s office, they are likely to discover it only after giving up their own search, and hiring an attorney to file an expensive intestacy proceeding. If you move to a new county, there’s no need to re-file the will in the new county. However, heirs still need to know where you orginally made your safekeeping filing. As a practical matter, very few people file their wills with the County Clerk. This is largely because most are simply unaware of that option. Unless they change their policies, both Harris and Montgomery County current require the Testator to file their own will–in person. If you rewrite your will, you also have to go, in person, to get the old will out of safekeeping. However, the great advantage is that the Court now knows that your will exists (and if the County Clerk has gone out of business, then probating a will is probably the least of your heirs’ concerns).

A safe located within your home might also be a good place to keep your will, provided that it is large enough not to be easily stolen. A small safe will be a thief’s #1 target. The thieves will likely be frustrated after hauling away a heavy safe, and cutting it open, only to discover your personal papers. Nevertheless, their frustration will not get your safe, or your will, back. A filing cabinet is less likely to be stolen, but should only be used if it is both fireproof and floodproof. Another option available to almost everyone is the freezer. If you place your documents in a ziploc bag in your freezer they are somewhat fireproof, floodproof, and readily accessible as well as unlikley to be stolen. Of course, they are also easily disposed of by accident or intentionally, so if there is someone who is going to be unhappy with what you have written, you will want to choose a more secure option. You will also want to be sure and let your heirs know to check your freezer, as it is unlikely to occur to them on their own.

If you expect your will to be controversial, then I recommend best place to keep it is with the County Clerk. If you move to another location in Texas, then a copy may be filed with the county of your new residence. As stated, if the contents of your will will be welcome to everyone, than any place mentioned above will work, just let your heirs know which location you chose.

If you would like to see an attorney about either writing or probating a will in Harris, Walker, San Jacinto, Trinity, Montgomery, or Brazoria Counties, please contact my office at 936-435-1908 or 281-723-2791 for an appointment in either The Woodlands, Huntsville, or Sugar Land.

If your will does not provide for a contingent trust, then your heirs will have full control over their inheritance upon their reaching the age of majority (age 18). Most understand that it is rare to find an 18 year old who is sufficiently mature to be given unfettered access to an inheritance. Consequently, when most clients sit down and really think about at what age their children or grandchildren should come into their inheritance, more often than not, I hear ages between 25 and 30.

A contingent trust is a trust in which it states that, under special circumstances, money should be held in trust and the heir should only get a specified, or limited, amount. As noted, the most common special circumstance to trigger a contingency trust is that one of the heirs is under a certain age. An attorney has an substantial amount of flexibility in drafting a contingency trust, and I find that properly explaining the possible uses of a contingency trust can make my clients much more at peace with passing on their estates. For example, a contingency trust may provide that all living expenses will be paid as long as the beneficiary is enrolled full-time in an accredited university. Another is example is: Provision may be made to allow full distribution upon an heir reaching the age of 25, or obtaining a four year degree, which ever event occurs first.

It is also possible to determine in advance how much money should be available to the heir while the contingency trust is in effect. Probably the most common provision is that the trust should provide for the health, education, maintenance and support of the heir (a HEMS Trust, pronounced “hims”). This allows the trustee a considerable amount of discretion. Depending on how well you know the person you are appointing as trustee, you may or may not be comfortable with this. It is also not uncommon to give an heir a specified dollar amount wherein the trust corpus or res is distributed in incremental steps. If the dollar amount is stated in the year of the will, then the will should provide for the amount to be adjusted by the rate of inflation.

If you would like to schedule an appointment to discuss the drafting of your wil, please contact my office in Huntsville or The Woodlands, Texas at 936-435-1908, or in Sugar Land or Stafford at 281-723-2791.

Oftentimes clients who have family real estate interests want to give each of their children an interest in real property. However, this does not happen nearly as often as clients who visit their attorney asking how in the world they can sell (or build on) a property when they own only a 1/32 share! Think about it. More often that not, heirs often do not even know the other owners. This (nightmare) scenario is usually created when several owners in succession die without a will.

Consequently, you can imagine how I wince when someone is responsible enough to make a will, but then tells me that their parents left them a 1/4 interest in the parents’ home, and they want to give each of their three children an interest. This is the very type of nightmare that writing a will was meant to avoid. If you want to leave a property in such a manner that all your children and grandchildren can use it, call my office at 936-435-1908 to schedule an appointment. It can be done, but all considerations must be evaluated prior to the drafting of documents.

Lets say that Mike and Carol buy some acreage with a cabin as a vacation home. The family loves it because the scenery is beautiful, they can keep horses on the property–and it is just a three hour drive from their home. Mike and Carol envision their grandchildren and greatgrandchildren coming out to the property, riding horses, spending time together, and thinking fondly of their grandparents and great grandparents. So Mike and Carol leave the property in equal shares to their six children. After Mike and Carol’s death, the children do use the property for a while. However, some major foundation repair is necessary, and noone is willing to pay the cost to have it done. Greg offers to pay a sixth, but Peter and Jan will not participate, and noone is willing to pay “their share”. Greg has been caring for the horses and cutting the underbrush, but he becomes ill, and noone else lives close enough to take over these regular tasks. Marsha discovers that they can sell some of the pine trees on the acreage and make enough money to make the repairs, and pay for someone to do some regular maintainance, but the timber company needs the signatures of all the owners. Bobby is dead, and his wife hates the family, and will not cooperate. After a while, Bobby’s son moves on to the property full time. He is, after all, a 1/24th owner, and this saves him the cost of rent, or a mortgage. Bobby Jr, is a habitual drug user who uses terrible language. Noone wants to go on the property while he is there, and noone can get rid of him. Meanwhile, the area where the cabin is located is becoming increasingly developed. It may not be worth much as a vacation home, but it is very valualbe as commercial property. Marsha would like to sell the property, and buy a new vacation property that would be closer to the family, and more suitable. The problem is, four of the original six children are dead. The property is owned by grandchildren, great grandchildren and relatives of spouses. Marsha can only sell the property by first filing a partition action, and serving each of the 24 owners.

You probably think that I am exaggerating for effect. No, no, no! In one week, I had two different clients with properties every bit as fractured. Lawyers do not need work this badly! So avoid dividing real estate among a group of owners unless you know what the end result will look like. Let’s look at how Mike and Carol could have done it, if they had been willing to listen to their attorney.

Mike and Carol create a Brady Vacation Trust. The trust owns the property. Greg, who is the most responsible, is appointed trustee. He is given the authority to manage the property, make repairs, and request contributions. He also has the authority to restrict the use of the property by the descendants, and to terminate the ability of someone to use the property if they refuse to participate in the upkeep. Fortunately, Greg has the authority to sell the lumber, so he does not even need to ask for much upkeep. When the character of the area changes, Greg has the ability to sell the land, and buy new land which will serve the same purpose. The trust allows a majority of the survivng siblings to appoint a successor trustee. If Mike and Carol want, they can put all kinds of requirements in there, like Greg cannot sell the property if one of the orignial six siblings wants to use it, or the property can be sold anytime a majority of the users want to sell it. The point is, as a lawyer, I can make almost anything Mike and Carol want to happen with the property, happen, and I can do it without fracturing the ownership. If you would like to discuss in more detail the best way to leave real estate, please contact my office at 936-435-1908, or at 281-723-2791 for Sugar Land or Stafford residents.

Oftentimes clients want to make two or more of their children co-executors. Usually, this is done to avoid the appearance of picking a favorite. Unfortunately, it is almost always a bad idea to name co-executors over a probate estate . Contrary to intuition: If there are any latent bad feelings between siblings, being appointed co-executors is the best way to drag those feelings to the surface (or if there are none, then creating a co-executorship is the best way to create ill will).

But one example of this involves the sale of real estate. Even if the will specifies that the land is to be sold, siblings could easily come to different opinions about what a reasonable selling price is, or whether to sell the property as is, or to make improvements first. If one of the siblings is appointed executor, the other may disagree, but, in most cases, they will defer to the executor. If, however, they have been appointed together, each may feel an obligation to mom or dad, to make sure the highest value possible is received. Each of them may speak to different realtors, or look at other sales comparables, and what began as simply an underlying feeling of “that doesn’t seem quite right, but what do I know”, becomes instead an opinion which is the only and obvious solution.

Other common issues that can cause friction even between well-meaning siblings is how soon to probate the will. Some children feel greedy if they start going over bank accounts too soon after a parents death, and others feel a comfort in following through with formalities and promptly dealing with the last task their parents assigned them. If only one child were appointed, the personal preference of the other may raise the eyebrows of the other, but is unlikely to be a source of lasting friction. If, however, the children are dependent on the agreement of each other before any steps can be taken, this can become a source of deep resentment. In other words, what may seem innocuous outside of probate, suddenly becomes the subject of the suspicion and conflict during probate.

On the other hand, it is often surprising how angry a co-executor can become when they feel like the other executor is leaving them to do all the work by themselves (or worse, going behind their back). The Keatings know that Alex is much more likely to be the child to follow through with hiring a lawyer, setting a court hearing, and taking an inventory of their property, but they don’t want the more emotional Mallory to feel left out. So they appoint Alex and Mallory as co- executors. However, as the parents could have guessed, Alex is the one who ends up actually doing the work. If he would have been appointed executor, he would have felt that his parents recognized him as being more responsible. Mallory would most likely have realized that her parents wanted to spare her details which would have made her uncomfortable to deal with. As co-executors, Alex feels Mallory is simply not carrying her share of the burden. After all, just because he is practical, doesn’t mean it is less pleasant for him to sort through their memories and belongings. What could have been an honor for Alex, becomes a burden, and a source of friction.

Sometimes I have clients who are considering appointing co-executors because they know there are bad feelings between their children. Peggy and Al know that even though Bud is the best person to be executor, Kelly will not trust anything that Bud does. In a case like this, the best thing to do is carefully consider if Kelly would be right to be suspicious. If in fact, Bud cannot be trusted, the parents may want to rethink naming him as executor. Nevertheless, if they feel they must name him as executor, they may want to discuss with their attorney whether he should be required to post a bond, or even oversee a dependent administration. If Kelly’s bad feelings are unjustified, and Bud is, in fact, trustworthy, Peggy and Al should probably question whether being a co-executor would really make Kelly more secure, or whether it would just be creating a nightmare situation for each of them.

In most cases, parents should simply name the child most likely to be a good executor. And children who are hurt that someone else was named as executor should know that I have had more than one client who had a clear favorite among his children, and yet named a different child to be executor.