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Make sure your executors and attorneys can get along!

April 21, 2020

In estate planning, the most important people are your executors (of your will) and attorneys (as your power of attorney).  As they hold the power to get the things done that really need to be done, it goes without saying you want to make sure they get along!

Your will

A will is the first step in ensuring the distribution of your estate is actioned in accordance with your wishes. Without a will, upon your death, a court controls the distribution of your estate and the persons to whom your estate is distributed to, which may result in delays in asset distribution.

The executor of a will is the legal personal representative of the deceased person, and they are responsible for carrying out the terms of the will and administering the deceased estate.

When choosing who to be your executor/s, you can choose a single person, or several people.  If you choose to have more than one executor, it is important to note that under s.49 Succession Act 1981, all executors must act jointly.  That is, they must get along and agree on the action that must be taken.  If they don’t, this could lead to disagreements in administering the estate and the ultimate distribution of assets.

If at the time of drafting your will your desired joint executors aren’t getting along, it might be wise to consider a single executor, or alternative executors, who are more likely to manage the roles better.

Powers of Attorney

A power of attorney appoints another party to act on your behalf to make decisions in respect of your legal and financial affairs. Subject to its terms, such a document remains in force until you cancel it.

Under s.80 Powers of Attorney Act 1998, attorneys must agree unanimously on how to act for the person they are acting for.  If your attorneys do not agree, then this could significantly impact your situation as delays occur in reaching agreement.  In extreme cases, they might need to apply to the court for directions on how to act.

The importance of discussing your wishes

No one wants to think about their own mortality, or the idea of being incapacitated and needing someone to act for them. But thinking about it doesn’t needed to be a negative experience.  Planning for it, and discussing your wishes with the important people in your life, can certainly give you comfort that your wishes will be carried out.  Having the right people (who get along if needed) is the final part of making it all work smoothly when needed.



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