Designating Co-Executors of a Will
Estate planning, including preparing your will, is filled with big decisions. One of the most important is your choice of executor (also called a “personal representative”). Your executor is the person who will administer your estate after your death. Because your executor is in charge of settling your last debts and distributing your remaining assets according to your wishes, you want to choose someone trustworthy. Most people choose their spouse, an adult child, or perhaps a sibling. But does it ever make sense to designate co-executors of a will?
There are advantages, and disadvantages, to choosing two people to work together to administer your estate. But before we get to those, let’s discuss what an executor of a will is and the duties of an executor of a will.
What is an Executor of a Will?
As mentioned above, the executor of a will is the person in charge of managing the business of a deceased person’s estate. Although a will may designate an executor (or co-executors), the executor has no power to act on behalf of the estate until the probate court officially appoints him or her. There are some situations in which the person named executor in the will does not end up being the executor appointed by the court; for instance, that person could decline to serve, be determined unsuitable, or predecease the maker of the will.
What are the duties of an executor of a will? The executor is a fiduciary, someone who is bound to act in the best interest of another person or persons—in this case, the beneficiaries of the will. The executor must undertake the following duties on behalf of the estate:
- Apply to open a probate matter in the probate court for the county where the deceased last resided
- Submit the will to probate
- Identify, locate, inventory, and secure assets of the estate
- Notify interested parties, including heirs and creditors, of estate proceedings
- Pay all legitimate debts of the estate according to the priority given them under law
- File all tax returns required of the estate and pay any tax due out of estate funds
- Distribute remaining estate assets according to the terms of the will
- File any inventories and reports required by the probate court
- Close the estate
Serving as an executor is serious business; failure to fulfill one’s duties can result in losses to the estate and potentially, personal liability for the executor. Would having two executors ensure that all duties are properly carried out, or make it more likely that something would slip through the cracks?
Advantages of Having Co-Executors of a Will
There are times when having two executors is a good thing. For instance, if the estate includes assets that a single executor might not be well-positioned to manage, having a co-executor with the requisite knowledge could be invaluable. Scenarios that fall into this category might include:
- The testator (maker of the will) wants to name his spouse executor, but he owns a business in which the spouse has had no involvement. Naming a business partner, or the business’s accountant or attorney co-executor, could ensure that the spouse does not make decisions that are detrimental to the business.
- The testator has invested heavily in cryptocurrencies, but her adult daughter, who lives nearby, is unfamiliar with blockchain. If the testator’s tech-savvy son, who lives across the country, were co-executor, he could take charge of this aspect of the estate.
Another situation in which it might make sense to have co-executors of a will is if a testator wants a spouse to serve as executor but worries that it might be too much for him or her to handle without help. In that case, appointing an adult child as co-executor might be a good solution.
Most of the time, however, the reason people give for wanting to appoint co-executors is that they do not want to offend one or more of their adult children by naming another as executor. In this situation, appointing co-executors is rarely the best answer, for the reasons below.
Disadvantages of Having Co-Executors
In general, naming co-executors of an estate outweighs the benefits. Co-executors of a will have equal power, which means neither of them can make a decision on behalf of the estate without the other signing off on it.
While this might appear to provide a safeguard against one executor acting dishonestly or unwisely, it is more likely to cause unnecessary delay in the administration of the estate, especially if one of the co-executors doesn’t live locally. If a testator is concerned about one executor acting imprudently, the testator should not put that person in the position of managing the estate at all.
It is also likely that the move of naming two adult children as co-executors to preserve family harmony will backfire. Co-executors need to work together closely; if they disagree on what should be done regarding the estate, it could cause greater discord and hurt feelings than if only one of them had been named executor. Disputes between co-executors may also lead to costly and contentious probate litigation.
Most of the time, it is not the actual role of executor that people want; it is to know that they are loved and trusted by a parent. Most testators are better off choosing one adult child to serve as executor and explaining the decision in advance to all of the children. There is usually a practical reason for the choice, such as that one child lives closer or has more time available to probate the estate. If everyone understands that the choice of executor is not a comment on the parent’s love for or faith in them, hard feelings can be avoided.
One option that can help to prevent conflict between siblings without complicating probate of the estate is to name one child executor and the others as alternate executors. This is more than just a gesture for show; if the named executor is unable or unwilling to serve, one of the alternates is positioned to fill the role. Naming alternate executors also has the benefit of showing your other children that you respect and trust them. That said, as with your primary executor, you should not name someone as an alternate if you are not confident that they can manage the responsibilities involved.
If you are concerned about choosing an executor or co-executors, you should speak with an experienced probate attorney before making a decision. We invite you to contact our law office to schedule a consultation.