A common concern for individuals is the possibility of a "fall out" after their deaths. When someone dies the combination of heightened emotions, differing personalities and the practicalities of winding up a person's affairs can sometimes lead to disagreements and ill feeling amongst individuals. We are often asked by clients about what can be done to minimise the risk of this occurring.
1. Write your will
Firstly, the most important thing that anyone can do to reduce the possibility of arguments following their death is to make their will with a lawyer. A will which has been prepared by a lawyer will have been prepared in accordance with the usual professional standards and alongside the provision of legal advice to an individual. A will prepared on this basis will be able to clearly set out the individual's wishes in relation to some or all of the following matters: executors, legatees, beneficiaries, guardians for children, and funeral instructions.
This is often not the case for wills which have been prepared by an individual without any legal advice being obtained, as these types of "homemade" wills can often be ambiguous, unclear, or simply not deal with all of the matters which need to be attended to. This can then lead to disagreements over these various points amongst the deceased's loved ones.
A will prepared under the guidance of a lawyer is unlikely to be able to be challenged by anyone who is disgruntled by the terms of the will. Instructing a lawyer to prepare a will which is clear and concise enables a family to progress with winding up the individual's affairs in accordance with their wishes as quickly as possible.
2. Think carefully about who you will appoint as executor and make the terms clear
Secondly, consideration should be given to the terms of the will which will allow for the estate administration to be dealt with as easily as possible. In respect of Executors who will be responsible for administering the estate, you should consider how these Executors will interact with each other. If you are aware of current or potential conflict between individuals, then it is advisable not to appoint them to act as Executors if they are unable to cooperate. You can appoint an impartial third party, such as a law firm's trustee company, to act as an Executor where there is a concern about individuals being able to act together.
Sometimes the terms of the will can be worded in a way to allow for beneficiaries to have some flexibility provided to them (eg. they are left an item of my jewellery of their choice) but this is usually caveated that in the event of disagreement amongst beneficiaries, the Executors will have the final decision. If Executors are not on good terms and they are required to make such decisions, there could be difficulty with this operating in practice which will ultimately be detrimental to the beneficiaries.
3. Write a letter of wishes
Thirdly, if there is any concern that a person's wishes may be unclear, or that the reasons for their decisions will be questioned following their death, they can prepare letter of wishes to accompany their will. A letter of wishes would not be legally binding but it could provide the necessary background and reasoning for the decisions which an individual has taken in relation to their will and estate planning. It can also provide further guidance to Executors as to the administration of the estate to prevent any delay in them acting.
You should therefore consider carefully (1) how your will should be prepared and (2) who should be responsible for administering your estate as Executor. Careful planning and attention to detail whilst you are alive will be able to minimise any drama occurring after your death and prevent delays and added expenses to the administration of your estate.
Contributor
Senior Associate
