Executor Or Co-Executor for each will in a 2nd Marriage?
Hi Terry
In 2020 as part of my healthcare program, my insurance company offered a Healthy At Home Webcast Network Series of videos one of which was titled “A WILL VS. A REVOCABLE LIVING TRUST” by Terry Savage. I’ve viewed your video 3 additional times since 2020.
Your video was so very well presented and informative. I have to thank you for your generosity in providing such important information so eloquently.
What is your recommendation to have Co-Executors in a will for a 2nd marriage with each spouse having children?
My 2nd wife is the executor of my will and her executor is her child (my step child). It ends up that my wife’s child becomes the executor of my will when I pass.
It works visa versa with my wife. I am executor of her will and my executor is my child (her step child). When we both have passed, no matter which one of us dies first, our executors are our spouse’s child. This doesn’t sound kosher to me.
Should we revise our wills to have” co-executors” or is it not necessary for the reason that, “An executor cannot decide who gets what after death? Executors must ensure assets are distributed correctly. They are bound by the testator’s directives as specified in the will”.
Your thoughts?
Terry Says
First, thanks for the compliment. And for my readers scrolling questions, here is the video in question. It is posted permanently on the home page at TerrySavage.com under “Terry Talks Wills, Trusts, and Estate Plans.”
https://www.terrysavage.com/wp-content/uploads/2022/10/Terry-Talks-Wills-Trusts-Estate-Planning.mp4
You may have watched my video three times, but I had to read your question three times to understand it!! That is a VERY unusual situation.
If I were in your place (and I’m not, so I don’t know the sophistication of your children, the trust level, etc) and I also don’t know what property you want to keep separate (and I’m assuming you each came into the marriage with property you want to keep in separate ownership) and also assuming that you might have a prenup.
I co-wrote a book called The New Love Deal (available on Amazon at this link) which completely explains how you would do an estate plan, using separate revocable living trust for property titled separately and a “family” living trust for property you want to own and distribute jointly.
You would be co-trustees of the family trust — and each would likely name a trusted adult or child to be the successor trustee for the separate trusts. And if you were to both die in an accident, you would name successor trustees for the family trust (likely both adult children, or maybe your attorney) to take your place in the family trust if you are both dead or incapacitated.
As noted in the video, it’s important to properly re-title all property in the correct name of the trust.
Yes, that can be expensive –but it does keep things separate at death. Your state might have community property laws, that make it imperative that you keep property owned separately in separate trusts — so your heirs can’t fight over them!
If you have already co-mingled all your assets, putting them in joint name, for example, then just the one family trust would be enough. You would make specific bequests from that trust (Susie gets the family silver, Billy gets the boat, etc) and your SUCCESSOR TRUSTEE(S) would be responsible for distributing the assets per your direction. Your two adult children could be co-trustees, with perhaps the addition of a neutral adjult to adjudicate issues!
Now, lest I be accused of practicing law without a license (!), I’m going to suggest that you find a neutral estate planning attorney in your state of residence to handle this for you. You can find one at www.search-attorneys.com — the website of the American Academy of estate planning attorneys.
But it will be easier on you — not to mention far less expensive — if you know what goes where in advance, and who is responsible for what!
