Be My Executor
(Added 10/6/2014)
I know you've written about the relationship fundraisers often create with their donors, and that it's dicey to accept gifts from them. But one of my donors – his wife died long ago and he is estranged from his children – has asked that I serve in the role of executor. He's become a close friend over the years. I'm an attorney and would feel comfortable; in fact, the job would be pretty easy because the wills that he showed me, the one written before his wife died and the recently updated one, shows that all of his estate, which is valued at approximately $3 million, will be coming to our museum. Actually, he was going to leave his wife $1 million, but the rest was going to come to us; after she dies, he updated the will. I can't see anything wrong here, but are there any issues that I should be aware of?
In a word: Yes. Getting too close to a donor, even when he's gone, is not a good idea. To begin with, the one point you make in your favor – that the donor is bequeathing all of this assets to your museum anyway – is actually the biggest reason you should not act as executor. It doesn't matter that he wants to give your museum the money anyway; that you would be his personal agent in charge of distributing his assets creates a conflict of interest. Although it is true that an executor is charged only with executing the terms of a will that is already written, in which the donor has already made all of the beneficiary decisions – as well as the amount and timing of distributions – you still put yourself at odds with the organization for which you work. Although in all probability no problems would arise, the basic conflict of interest should steer you away. Yes, I'd assume you'd be glad to do it at no cost, but that's not a professional approach. Even so, the perception of anyone who found out – the will is a public document, remember – might wonder about any benefits you might accrue personally.
And what will happen if the will is challenged? Children and other heirs have been known in the past to mysteriously materialize when money is lying around in someone's estate. Even if he really is estranged from his children, does the will explicitly exclude them? They could argue that at least the amount that was earmarked for his wife, had she lived after his death, should have gone to them. And if the will is explicit, would they be able to persuasively argue, for example, that his mental capacity at the time the will was written was diminished? Following that for a moment, could you actually prove that you were not involved in his decision to leave everything to you at their expense? As the success of your argument would so clearly result in your organization's benefit, your rationale, whatever you might muster up, would be seen as tainted, and you would be put into an impossibly difficult position.
That you are an attorney is even less of a reason, in my view, to undertake this responsibility. Presumably, your donor's will was written by an attorney and so – an obvious question – why wouldn't the attorney who wrote the will agree to act as the executor? Even if an attorney did not write the will, as many people are suspicious of the work attorneys do, the qualities that you bring to the table as an attorney are far outweighed by the conflict of interest that you would be creating.
Why go there? Ask your donor who wrote the will and if he would agree to having that person act as executor. And don't hesitate to explain the truth of the issue: Even though your relationship might be close and even though he wants his treasure to benefit your museum, you are not the right person to provide this service.