One of the key decision the wealthy make when planning their estates is deciding on who will be their executors. The executor is the CEO of a person’s estate. He or she is responsible to follow make sure the will is executed properly including distributing assets to heirs and ensuring any taxes due are paid.
According to Cliff Oberlin, chairman and CEO of Oberlin Wealth Partners, “Who should be the executor can be a difficult decision for many people. An executor can literally be anyone. Professionals such as lawyers or bankers are sometimes made the executor. For most people a family member is named and these family members can engage a professional to help do the job if need be.”
To get some ideas of the complications that can arise, consider the following cases:
Leona Helmsley: Leona Helmsley died in 2007. Most of her fortune in the billions was placed in a charitable trust. However, her dog did receive $12 million, which was reduced after a legal challenge. Fifteen million dollars went to her brother, $10 million to each of her grandsons, and two other grandchildren though initially disinherited ended up with $3 million.
Years after Helmsley died, the executors—the two grandchildren who inherited $10 million each, Helmsley’s former lawyer and former business advisor—submitted a bill for services of $100 million. Already the executors were given $7 million in fees. They claimed the additional monies were for dealing with an extremely complicated estate. Also, from the time of her death until the estate was settled, the value of the assets rose.
It is important to note that Helmsley’s will did not specify how to determine the executor’s fees. It also said not to use the fee schedule of New York. In many states, executors are paid a fee based on a sliding percentage of the assets in the estate. Using the New York State schedule, the executor fee would have been about $200 million. Meanwhile, the $100 million requested by the executors is a rate of $6,437 an hour based on the amount of time the executors addressed settling the estate.
Brook Astor: Brook Astor was a New York society fixture that died in 2007. Her son and executor was Anthony Marshall. He engaged the services of Francis X. Morrissey Jr. to plan Astor’s estate. Marshall was later convicted of larceny with claims of elder abuse and Morrissey of fraud and conspiracy.
Meanwhile, Astor’s grandson Philip Marshall believed that Anthony took advantage of his mother and brought the matter to court. Each side professed to know Brook Astor’s true intentions. In 2012 a settlement was reached and Anthony Marshall’s inheritance was cut in half.
Doris Duke: The socialite Doris Duke named her butler and a trust bank was named co-executors of her $1.2 billion estate. The butler, who was an admitted alcoholic, was written into the will less than a year before Duke died. After her death, the butler ended up using the assets in the estate as if they were his property. He was living in her mansions and driving her cars. He also flew in her private Boeing 737. All this paid for by the estate.
After a lawsuit, the butler resigned as co-executor. He also gave up his seat on the board of Duke’s charitable foundation. However, he was paid his executor fee of $4.5 million as well as $500,000 annually for the rest of his life.
Executor Misconduct
There are some distinct advantages to having a dead client. This is especially the case when the wishes of the now deceased client are vague, as in the case of Brook Astor. There are clear circumstances where executors are not fulfilling their obligations…
- Withholding inheritance: When the executor is not dispersing assets in a timely manner it can be a red flag and should be looked into.
- Breach of fiduciary obligations: All executors must act in the best interests of the deceased and the beneficiaries. Sometimes, executors are not fulfilling their fiduciary duty, and ignorance is not valid excuse.
- Stealing from the estate: Access and no or limited oversight can easily result in greedy people abusing their position as executors.
Lessons for the Wealthy
What all this means is that you want to take action to make as certain as possible your wishes designated in your will are followed. There are two actions that will tremendously help—not in any way guarantee, but certainly help make sure your executor does a good job.
- Pick someone you trust and is willing to do the job: According to Jennifer Santaniello Thomas, of counsel with the Abrams Fensterman law firm, “While things might not always turn out as planned, the closest to a guarantee you will get to your intent being carried out is by selecting someone who you have a great deal of faith in. Your executor must also have the time and be inclined to do the job.”
- Make sure the executor knows what you want to happen and respects your wishes: The idea is to eliminate any vagueness in the will. Communicate clearly what you want to happen and, if possible, document it. “Your executor must respect your wishes even if he or she disagrees with them,” says Thomas. “For example, if you leave a specified sum of money to a particular cousin that the executor despises, the executor must disperse the funds to your cousin despite his/her own personal feelings. While it is possible to remove an executor who is not following the directions provided in a will, it is often a costly process that is partially if not entirely funded by the estate. The better approach is to carefully and explicitly specify your wishes and to select an executor who your trust will carry out your intent.”
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