Question:
Hi, my name is Peter. I’m currently married with Mei Ling and together, we have two kids. We are looking to write our wills and are now considering if we should appoint each other as the executors of our wills. This means, Mei Ling would act as the executor of my will if I pass on and vice versa.
But, we both have a concern.
What if both of us pass on simultaneously in an accident?
This is because we often travel together as a couple for business and leisure.
Thus, our questions are:
1. Is it still okay to appoint each other as executors of our wills?
2. Should we appoint other family members to be the executors of our wills?
3. Alternatively, should we appoint a trustee corporation to execute our wills?
Answer:
First, let me briefly list down the roles of an executor of a will, upon the passing of the testator (the person who wrote the will). To put it simply, they are:
#1: Apply for the Grant of Probate (GP) from the High Court.
#2: Collect all estates of the deceased.
#3: Settle all outstanding taxes and debts owed by the deceased.
#4: Distribute the estates in accordance with the instructions listed in the will.
The duration for an executor to complete his role shall depend on how complex the will is being written. For a simple will, it could be expedited in 9-12 months. But, for a more complex will, the process could take decades to be completed.
Thus, the complexity of your will shall influence who you should be choosing to act as your executor. In this write-up, I will list down 5 things that you should be considering when choosing the executor of your will.
They are as follow:
Consideration #1: Age
Let’s come back to Peter and here, let’s assume that his father is 70 years old.
Peter could appoint his father to be the executor of his will. But, is this practical to do so? Personally, I don’t think so. This is because Peter’s father can be really old if he has to act as the executor of Peter’s will. There is a higher possibility of Peter’s father to pass on before completing his role as an executor and it causes the administration of Peter’s estates to be delayed.
So ideally, it is okay for Peter to appoint Mei Ling, his wife, to act as an executor of his will if it is realistic to expect his wife to remain active for decades to come in the future.
Consideration #2: Character
Obviously, it makes sense to appoint a person who is of good character and has industry experiences to act as the executor of your will. In Peter’s case, I think it is not an issue to nominate Mei Ling because she has working experiences and I think it is not hard for her to engage a lawyer to assist her in the administration of the estates.
Consideration #3: Location
Let’s say Peter has a brother named Paul.
Paul resides in Australia with a family of his own.
So, is it practical for Peter to name Paul to act as the executor of his will?
While it is permissible, I believe it is not practical if Peter is residing in Malaysia, owning almost all of his assets within the country. If I’m Peter, I would give Paul a break and will nominate a person who resides in the same city as I reside now to act as the executor of my will. This is because the executor would need to be present for court appearances, keep an eye on my assets and to make sure that my estates would be administered accordingly with minimum delay.
Consideration #4: The Number of Executors
Let’s say Peter has two sisters named Paula and Pauline.
Both of them live in the same city where Peter is currently residing.
Peter can nominate Mei Ling and his two sisters to be joint executors of his will. But, once again, is that practical?
Well, there is an English saying, ‘Too Many Cooks Spoil the Broth’.
This will be an issue, if the joint executors could not work together. It is possible for the estate administration process to be lengthened due to inefficiencies. Or, it can lead to them renouncing their rights to act as Peter’s executors, if they’ve found this entire process to be highly stressful and unproductive.
Consideration #5: Complexity in Family Relationships
Yes, Peter can appoint one or more of his beneficiaries to execute his will. It is a common practise among people who have decent family relationships.
It is cost-efficient as you are not using a trustee corporation to execute the will.
Below are a list of legal fees and expenses involved in the process of unlocking the estate.
1. Grant of Probate (GP).
2. Memorandum of Transfer (MOT).
3. Estate Administration
But here, let me give you another scenario.
Let’s say Peter is 55 years old.
He has two sons namely Cain and Abel.
Cain is 30 years old. Abel is 25 years old. They despise each other and you know and can sense a deep rivalry between the two brothers.
You like to bless Abel more as he is more upright than his elder brother.
But, you know that Mei Ling loves Cain a little more than Abel.
So how?
Here is what you can do.
You can appoint a trustee corporation to act as the executor of your will. This is because a trustee corporation would act impartially without bias in accordance with the instructions listed in your will. A trustee corporation shall impose a fee to execute your will professionally and the fee will range between 0.5%-1.0% of the total estates. It pays to have a good relationship with your family members.
The above is just one of the many scenarios.
The nomination of a trustee corporation to act as an executor would usually be considered under the following circumstances:
#1: The testator wants to keep his will confidential from his beneficiaries.
#2: The testator likes the process of his estate administration to be hassle free.
#3: The testator has to care for dependents who require special needs.
#4: The testator has children from more than one wife.
What’s Best for Peter?
If I’m Peter today, I would still nominate Mei Ling as the primary executor of my will. Likewise, Mei Ling could nominate me to be the executor of her will.
But, if our kids are minors, Mei Ling and I can nominate a trustee corporation in our own respective wills to be the substitute executor of our wills. Otherwise, if our kids are adults, we could appoint them as our substitute joint executors.
This could add more certainty to a family’s estate plan, knowing that if husband and wife are to pass on together, there will be a substitute joint executor who’ll take charge and complete the estate administration process.
All in all, it is about making the administration process as seamless as possible.
If that is you, you may consider the services of a qualified estate planner, who are well-versed in will writing and trust formation services. You may start by filling up the details below to book a 30-minute consultation session so that you can brainstorm ideas on this to find out how you could plan your estates efficiently today.
