A person’s will typically names one individual as the executor, meaning that they have complete control over the estate and any proceedings that follow as part of the probate process.
But what happens when a will names two (or more) executors to have authority over the estate? Known as co-executors, each party named to administer the will has complete authority over the estate and must cooperate closely with one another on all aspects of settling the estate.
While this can be beneficial for larger estates, which may require the expertise of multiple people in order to effectively divide assets among heirs and beneficiaries, smaller estates may find that naming co-executors makes the probate process needlessly more complicated due to the obligations of both parties.
Co-independent executors are most commonly named by parents of multiple children who wish to not cause additional complications after death through resentment of who is chosen to be executor of the will. But in trying to prevent complications by naming their children as co-executors of the estate, parents often unwittingly create a larger web of complex legal and fiduciary challenges for their children to navigate on their own.
While the general responsibilities and obligations of an executor remains the same for both parties, the key difference is that the two parties must work together despite having equal control over the estate.
This applies to all aspects of the probate process. If one co-executor disagrees with the decision of the other co-executor, then action cannot be taken until the conflict is resolved and both parties are in agreeance.
Generally, co-independent executors are expected to cooperate on matters surrounding:
In instances where unethical, illegal or otherwise obstructive behavior is repeatedly observed by one co-executor, they may petition to have the other removed from their position and asume executor responsibilities independently.
It can be difficult to say whether it is easier or harder to have a co-executor administer an estate administration with you, but it does make things different. As previously mentioned, both parties must be in complete agreement with all matters pertaining to the estate, and must sign off on these matters jointly.
There are some instances in which it makes sense to name co-executors and in which it can make probate easier: for example, naming a spouse and another third-party (with little to no stake in the estate) as co-executors may help ensure that your will is honored and inheritances are handled competently without overwhelming your grieving spouse with paperwork and a lengthy probate process.
In another instance, naming a business partner as a co-executor to your will can ensure that decisions regarding your business are handled appropriately and that your business partner’s concerns will be addressed while your estate is being probated.
While the above scenarios demonstrate how naming co-executors can make estate administration easier, the unfortunate reality is that probate often becomes much more complex and stressful if the named co-executors do not cooperate or live near one another.
Because of the problems that can arise due to a lack of proximity or cooperation, a viable alternative to naming co-executors is to name alternate executors instead. In general terms, alternate executors are substitutes for the primary executor.
If the primary executor is unable or unwilling to perform their duties towards the estate, an alternate executor is then able to assume full responsibility of the estate without contest. Unlike co-executors, primary executors and alternate executors are not required to work together on matters of the estate—it is solely the responsibility of the named executor to oversee the estate unless they are no longer able to.
It may be better to name one child as primary executor and the others as alternate executors as opposed to naming them all as co-executors. Depending on their relationship with one another, it could save them from the stress of in-fighting as they navigate probate and try to work out what is in the best interests of the other heirs and beneficiaries. This also eliminates the need to be in close proximity to one another in order to sign paperwork and checks on behalf of the estate.
Whether you are writing your first will or are revising the terms of one already written, it is worth exploring your options of naming co-executors to manage your estate after you have passed. Hiring an experienced estate planning or probate attorney to discuss your options may be in your best interests, depending on your situation
Romano & Sumner, PLLC