Joint executors - reasons to consider and possible problems

Reasons to have joint executors for a will

In our experience, some of the more common reasons clients consider appointing more than 1 executor in their will include :-

• Complex Estates - multiple executors often better manage estates with diverse assets. Business interests, property portfolios, and international assets may require different expertise. Professional executors can complement family members' knowledge.

• Family dynamics - relationships are often complex in today's world and may testators with several adult children, who are beneficiaries feel it's important to also have those adult children as executors and not only beneficiaries. Appointing only 1 can create friction and potentially even legal disputes.

• Where the will creates a trust

Joint executors - who is legally liable?

Executors are individually liable for their own actions but share responsibility for joint decisions. All executors must agree on significant decisions such as asset sales (often property) or transfers, distribution timing, use of external professional advice (typically solicitors)

When can a joint executor act alone?

There are workarounds to the general rue that executors cannot act alone including :-

• With express agreement of the other executor(s) - if all executors agree, one executor may be authorised to act on behalf of all. This agreement should ideally be in writing and may be most appropriate where 1 executor is an expert in 1 area of the probate such as a property lawyer or accountant. The executor giving the other authority should ensure appropriate safeguards are in place for him/her such as being kept fully informed, access to documents and possibly even an indemnity. Limited individual authority agreed might include administrative tasks or correspondence handling.

• Where 1 executor renounces - if one or more executors renounce their position (formally withdraw from their role), the remaining executor(s) may then proceed with the administration.

• By Court Order - in exceptional circumstances, the court may grant permission to one executor to act independently. This might occur if other executors are unable to fulfill their duties due to factors like incapacity, unavailability, or refusal to co-operate.

Typical disagreements between executors

• When executors cannot agree on what assets are worth - property valuations causing deadlock, disputes over specialist items needing expert input.

• Lack of information sharing - in practice where there are co-executors, invariably 1 takes the lead. If that person withholds financial information, does not share correspondence, refuses access to documents or makes decisions without consultation, this will create friction.

• One executor is doing all the work.

• Incompetence - examples include delays in basic administration tasks, failure to engage with co-executors, not following instructions in the will.

• Sale of property disagreement - conflicts about whether and when to sell, with beneficiaries potentially pushing for a quick sale (possibly by auction) versus others wanting to wait for the best time to sell or suitable offer.

• Personal possessions - typically arises where there is lack of clear will instructions and there are competing claims to sentimental items.

• Where executors are also trustees - where a will sets up a trust, the role of the executors/trustees becomes a more long term, complex role, often involving investment, distribution and asset management decisions where there is considerable scope for differences of approach and opinion.

• If the testator was involved in any legal disputes - there is considerable scope for disagreement over any disputes, whether to proceed or settle and overall strategy and cost/benefit analysis.

Dispute resolution with joint executors

Executors always need to bear in mind they are potentially personally liable and owe a duty to the beneficiaries and to carry out the instructions in the will. However, in some cases the executors are also the only or main beneficiaries which can make resolution more difficult.

Options to resolve any disagreements or disputes include :-

• Independent legal advice - seeking individual legal counsel can provide clarity and guidance on the best course of action.

• Renunciation - an executor may renounce their position if no probate has been granted and no significant steps have been taken to administer the estate.

• Alternative Dispute Resolution (ADR) - methods like negotiation, mediation, and arbitration can facilitate amicable resolutions, saving time and costs.

• Court intervention - if ADR fails, an executor may seek court intervention. The court has the power to provide directions, remove one or all executors from their role, revoke probate for an executor, compel an executor to share relevant information or appoint an independent party to administer the estate.