Are you a joint executor of a will or an executor of a will with more than one executor?

We often get asked how many Executors you can appoint in a Will or if you can appoint more than one Executor. The answer is yes, you can appoint multiple joint executors! Let’s break it down.

The Wills Act 1997 (Vic) does not prescribe a maximum number of executors who may be appointed under a Will to act as trustee to administer a deceased estate. However, Section 40 of the Trustees Act 1958 (Vic) limits the number of trustees to no more than four persons. Therefore, whilst the Wills Act does not prescribe a limit, the Trustees Act does. Where multiple Executors (co-executors) are appointed, they are to act jointly, sharing the same obligations and duties and possessing equal authority.

All co-executors owe the same fiduciary duties to the Estate and are jointly and severally personally liable on behalf of the Estate. Where more than one Executor is appointed, no step in the administration of the Estate may be taken unless all executors agree. This means that a joint Executor cannot act independently of another. If any of the co-executors disagrees with a proposed step of administration, that step must not proceed until the dispute between the co-executors is resolved and all co-executors concur. It is the same principal that applies to joint Attorney’s under a Power of Attorney; where multiple Attorneys are appointed to act jointly; they must act together, and none may act unilaterally. Unless the Will provides otherwise or the Court directs, co-executors are required to act together and none may act alone.

What are the legal duties of an Executor?

The key fiduciary or legal duties requiring joint action include:

1. Gathering assets. Co-executors must act jointly to locate, secure and verify all assets and determine what forms part of the Estate;
2. Act in a timely manner to sign a Probate application to obtain a Grant of Probate. Where all co-executors intend to prove the Will, they are required to jointly sign the Probate application. If a co-executor does not intend to prove and has renounced, they will not need to sign;
3. Selling and realising assets and paying estate liabilities. Co-executors must jointly complete and sign documents to sell, realise and call in estate funds, close the deceased’s accounts and pay all verified debts and expenses from estate funds. Co-executors may incur personal liability if liabilities are not properly identified and/or discharged;
4. Tax compliance. All executors must act jointly to determine and lodge any outstanding tax returns for the deceased, which includes a final individual tax return and where the estate derives taxable income during the administration, the deceased estate trust tax return;
5. Distributing the Estate in accordance with the Will. Any interim or final distribution must be approved and affected jointly by all executors; and
6. Resolve any dispute between each other and by any beneficiary. Co-executors must act jointly and impartially to resolve beneficiary complaints or any disagreements between themselves.

What are the advantages of appointing more than one executor?

Some of the advantages to appointing co-executors include:

7. The combination of knowledge and skills, particularly where a co-executor is a professional adviser (such as a lawyer or accountant);
8. If one co-executor was to die or become incapacitated during the administration, the administration of the Estate will generally continue without interruption. This can provide security that the Estate will not be delayed in the event of death or incapacity of a co-executor; and
9. In blended or complex family structures, appointing co-executors can promote even-handed administration and ensure that all beneficiaries’ interests are protected equally.

What are the disadvantages of appointing joint executors of a Will?

Some of the disadvantages to appointing more than one or two executors include:

10. If a co-executor cannot be located or is presumed dead, the Probate application will be delayed while searches and evidence are obtained; if unsuccessful, alternate orders may be required, resulting in more time and costs;
11. If co-executors do not get along, decision-making may become difficult and the administration of the Estate may be stalled by deadlock.

In serious cases, if a co-executor unreasonably delays or stalls the administration of the estate, the remaining co-executor/s may apply to the Court pursuant to Section 34(1)(c) of the Administration and Probate Act 1958 (Vic) for the removal of the defaulting co-executor;

12. The requirement to act jointly can cause delay, particularly where co-executors live in different states or countries or have conflicting schedules; and
13. Legal and administrative costs may increase, especially if disagreements escalate to mediation or court proceedings, with litigation expenses potentially diminishing the value of the Estate.

Executors should act cooperatively and exercise reasonable care, skill and diligence. They must maintain accurate estate records and accounts and do all things necessary to avoid conflicts of interest. Compliance with these obligations will minimise delays to the administration of the Estate, reduce the risk of disputes and limit exposure to personal liability.

If you are an Executor or co-executor of an estate and require advice or assistance in relation to the administration of an estate, please contact Wollerman Shacklock Lawyers on (03) 9707 1155 or via email at admin@wslegal.com.au.