“The world only goes round by misunderstanding.”
— Charles Baudelaire
Misunderstanding is the birthplace of arguments and confusion. Yet, we thrive more in our misunderstanding of situations, solutions and subject matter than we ever blossom once faced with clear comprehension.
Trinbagonians, in treating an ailment, will faster attempt to use home remedies suggested by friends and family than seek the advice of persons trained in the medical profession. It can be similarly said for legal advice.
The stories, albeit plagued with exaggeration, told by friends and relatives of legal success are preferable advice when compared to that of an attorney at law who attempts to offer guidance.
One of the more confusing aspects of legal advice appears to be the role of an executrix/executor. As a people, we treat an amber light more like a suggestion than an actual warning or direction.
An amber light is meant to warn that the red light is coming and that drivers are to stop unless they are too close to crossing to apply their brakes. In our country, the amber light is seen as a signal to speed up. It appears that some people named as executrix/executor in wills believe that the will acts as a guideline on the distribution of an estate, rather than instructions on how an estate should be distributed.
Oftentimes, persons charged with the duty to administer estates believe that by acquiring their probate documents, the distribution of the estate is done according to their wishes and can be altered to their liking. Many times, there are people who stray away from instructions and act with an authority that has not been vested in them.
I have known executors who have read a will that simply states that a portion of land is to be transferred to several persons, but they elect not to simply transfer. Instead, the executors retain a land surveyor and, on their own accord, decide to subdivide, perhaps even partition lands, and accumulate excessive bills before transferring. This is not necessarily the role of an executor, unless the will so directs. There are also executors who believe the contents of the will are unfair and that they have the power to alter and/or change gifts.
On the flip side, there are the executors who do nothing. Yes, there are persons named on wills as executors who opt to ignore their responsibility. This usually occurs when persons select an executor who is not a beneficiary in the will, or who has no real benefit to derive.
The probate process is expensive and time-consuming. I do appreciate persons being left with the responsibility of the probate process with no reward and questioning the need for them to undertake such an onerous task. This is one of the reasons that proper consultation and consideration should be given in the drafting of wills.
Executors fail to appreciate that their role carries the burden of responsibility. Instead, they mistakenly approach their role as a coveted position of extra benefit or reward; it is not.
Persons named as executors believe they are left in a position of power, whereby they can make decisions or alter the manner in which distribution is carried out. This is inaccurate and can lead to legal action.
As a person appointed as an executor, you are now placed in a position of having a fiduciary duty towards the estate and beneficiaries. In complying with these duties, an executor should preserve the estate, administer impartially and, most importantly, distribute the estate in compliance with the will.
An executor should also be able to prepare accounts which take into consideration all the profits and losses of the estate, as some estates are vested with commercial assets that continue as ongoing ventures during the probate process.
An executor who fails to perform their duty and/or is negligent in performing their duty can be brought before the court. There are many actions filed against executors for their failures in dealing with estates. It would be ill-advised to believe that by being named as executor in a will, there is no accountability necessary for the actions undertaken.
In naming an executor, persons preparing their will should be cautious. I have often heard people debating who would be their executors and they consider their eldest child, purely because he/she is the eldest, or a favourite sibling on the basis that they get along well. While those matters can be of influence, it will not be the only aspects to consider.
As was noted above, probate can be costly and time-consuming. A starting point may be determining whether the executor will be able to pay the cost of probate in advance while waiting for reimbursement from the estate and would be able to dedicate the time needed for the process. Importantly, the executor should be trustworthy and honest. Proper time and effort should be spent in considering on whose shoulders such a responsibility should be placed.
Pavitra Ramharack is head of chambers at Pavitra Ramharack Attorneys at Law and can be reached at [email protected]
