Pitfalls of appointing the surviving spouse as executor/trix:
The appointment of the surviving spouse as executor seems to be the honourable and correct thing to do. This in particular where the deceased died without leaving a valid will, or failed to nominate an executor/trix in the last will and testament.
The fact that the surviving spouse normally doesn’t have to provide the Master with security and that it seems to be the next best thing can often become your worst nightmare.
This in particular the case where the spouse is the second or third wife and the deceased divorced wife and children are still around, alternatively where her/his own children will compete for inheritance in the intestate succession.
The problem comes when particularly maintenance claims are submitted against the estate of the deceased by the divorced spouse or children.
It leaves the Surviving spouse in the predicament of rejecting these claims, because it is almost always financially beneficial to do so.
This however is where the clash of interest manifests itself and where cool heads and caution is required.
The remedies available are limited and consist of the following:
• Enter into a suitable redistribution agreement if possible. (possible but difficult with minors)
• Negotiate a suitable solution to all parties.
• Resign as executor/trix and appoint an independent individual. This is the most common and used method, but often goes with a lot of emotion and costs.
• Bear in mind the newly appointed executor will almost always need to provide security, and finds himself in a hot seat to make the correct decision without favouring any party to this dilemma.
With the above in mind it is always good practice to foresee where possible, the potential of a clash of interest and to steer clear of this from the offset.