Deciding who will handle your estate after your passing isn't always an easy matter, especially considering how arduous the task of an executor can be. One way to lessen the burden for all parties is to name co-executors. However, while there can be good reasons for having co-executors, there are also drawbacks, including the risk of conflict between them.
Most people name an executor in their will, as well as one or more contingent executors, who step in if the primary executor dies or is otherwise unable or unwilling to act. Most married people name their spouse as executor and an adult child as a contingent executor. An unmarried person with adult children often names an adult child as the primary executor.
Co-executors, on the other hand, are all primary executors who share the responsibility of managing the estate. If there are two or more adult children, many parents name them as co-executors so that they aren't perceived as favoring one child.
Your will can dictate how co-executors fulfill their duties. For example, your will can designate three co-executors and provide that decisions be made by a majority vote, that all co-executors must take action together, or that any one of them has authority to act alone.
A co-executor has the same duties as a single executor, primarily to:
- Pay the debts of the decedent
- Manage the assets of the estate
- Assure that the estate is distributed to the appropriate heirs, as set forth in the will
In addition, a co-executor has the duty to assure that any other co-executors fulfill their duties. Because co-executors must act together to effectively and efficiently manage the probate process, they must be able to collaborate and communicate with each other.
If an executor or co-executor passes away before the testator does, the testator may designate a replacement by making a new will or a codicil to the existing will. If the primary executor dies, either before or during the probate process, the designated contingent executor takes over. In cases where no contingent executor exists, the court steps in and appoints one. When a co-executor dies, either before or during the probate process, the remaining co-executor or co-executors take over.
Advantages of co-executors
Some benefits associated with designating co-executors include:
- Co-executors can divide up the work and consult each other if questions or problems arise.
- Co-executors may each have strengths that apply to certain aspects of the estate. For example, one may have special knowledge in real estate and another in dealing with digital assets.
- If you have a business, it may be more efficient to have a co-executor who understands business matters. For example, you might designate your spouse and your business partner as co-executors.
Disadvantages of co-executors
Having more than one executor can lead to conflict between co-executors. This can cause delays in the probate process. Conflicts may arise, especially between co-executor siblings, for numerous reasons, including:
- Long-standing conflicts unrelated to the estate
- One co-executor feeling that he is doing most of the work
- One co-executor feeling that the other is usurping what should be shared responsibilities
- Disagreement over the value of property
Other potential disadvantages include:
- One co-executor may simply not have the knowledge or temperament to effectively discharge her duties.
- Documents to transfer property and to be filed with the court may require the signature of all co-executors. If they don't live near each other, this can cause delays in transmitting documents back and forth for signatures.
The above are the most common reasons attorneys may advise their clients against using co-executors.
Removal of a co-executor
There are three ways that a co-executor can be removed:
- Removal by the testator. The testator, or creator of the will, may remove a co-executor by executing a codicil to the will or by executing a new will.
- Resignation. A co-executor may resign by signing a renunciation of her duties and filing it with the probate court.
- Removal by the court. The probate judge may remove a co-executor. This is generally done in response to a petition for removal by either another co-executor or an heir on the grounds that the co-executor is not acting according to the wishes of the testator and in the heirs' interests.
Whether to appoint an executor, co-executor, or contingent executor is an important part of the will-making process. For more assistance with choosing who will handle your estate after you pass, you may wish to consult with an attorney or with a probate specialist.
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