Can Co-Executors Act Independently In Probate?

Navigating the complex landscape of estate administration can be daunting, especially when it comes to the dynamics of co-executors. One of the questions we are frequently asked is ‘Can co-executors act independently in Probate?’ While it is possible for a single executor to administer an estate, we would always recommend the appointment of at least two joint executors when a Will is written.

In this blog post, we will explain the duties of executors and address common challenges that may arise in estate administration. 

What Is An Executor? 

An executor is a person named in a Will to carry out the deceased person’s wishes and administer their estate after they pass away. The duties of an executor include:

• Locating and securing assets belonging to the estate.
• Notifying beneficiaries and creditors of the death.
• Paying outstanding debts and taxes owed by the estate.
• Distributing assets to beneficiaries according to the terms of the Will.

Can Co-executors Act Independently? / Can One Executor Act Without The Other?

When a Will designates only one individual to act, they are referred to as a sole executor. In most cases, a sole executor can effectively manage estate affairs independently, especially if it is uncomplicated. For example, if everything has been left to the remaining spouse, a single executor will be able to deal with matters fairly easily.

However, if the Will appoints executors to act together, then they are known as joint or co-executors. It is not then possible for a joint or co-executor to act alone in the estate administration unless the other executor(s) give their agreement.

If the other executor(s) are happy for one person to act solely, then they can either be served with a Notice of Power Reserved (meaning they can take up the position later on should they choose to), or they can renounce their powers completely. It is advisable for executors to take legal advice before stepping aside.

There are several circumstances where a sole executor may encounter challenges in estate administration. Issues can arise if there is a trust in the Will, as it typically requires a minimum of two people to be dealt with properly. If only one executor is appointed, and there are no provisions for separate trustees, legal advice is crucial.

If a single executor is named in a Will, there is also a risk that they may die first, or over time may lose mental capacity. In that event, it would leave the estate without a named executor.

The Benefits Of A Second Joint Executor

The job of administration can be long and complex, involving the collecting and valuation of assets, arranging for clearance and sale of any property, calculation and payment of Inheritance Tax, preparation of detailed estate accounts and distribution of the estate to beneficiaries.

One of the main reasons for naming more than one executor is in case someone is unable to act when the time arises.

It can also be helpful for executors to share the burden, particularly if the winding-up takes many months and involves a large amount of correspondence.

Additionally, involving more than one family member can help avoid disagreements and distrust arising at what will be a difficult time.

What Happens If Co-executors Don’t Cooperate Or Cannot Agree?

In rare cases, co-executors may find themselves unable to cooperate or agree on certain aspects of the estate administration. This can lead to delays and complications in carrying out the deceased’s wishes. If co-executors cannot resolve their differences, they may need to seek the assistance of a mediator or legal professional to help them reach an agreement.

If the situation remains unresolved, an application can be made to the court for guidance or intervention. In extreme cases, the court may decide to remove one or more of the co-executors and appoint a replacement. This process can be time-consuming and costly, so it is best to avoid such disputes by carefully selecting co-executors and ensuring they can work together effectively.

Dealing With An Unresponsive Executor 

There may be situations where a co-executor is unable or unwilling to perform their duties. This could be due to a change in personal circumstances, illness, or relocation. In such cases, it is essential to have a backup plan in place. When drafting your Will, consider naming alternative executors who can step in if needed. This ensures that people are always available to carry out your wishes and administer your estate.

If a co-executor needs to step down during the administration process, they can do so by renouncing their role. This involves completing a legal document called a Deed of Renunciation, which formally relinquishes their executor duties. The remaining co-executors will then continue to administer the estate, either alone or with the assistance of an alternative executor.

Are There Situations Where A Co-executor Will Be Unable To Act?

Instances may arise where a co-executor is rendered incapable of fulfilling their duties:

Death of a Co-executor

In the event of a co-executor’s demise, the surviving executor(s) must obtain a copy of the death certificate. If probate is necessary, the acting executor must provide the Probate Registry with a copy of the death certificate as part of the grant application process. In cases where probate isn’t required, the surviving executor(s) may need to present the death certificate to asset-holding entities before releasing any funds.

Loss of Capacity by a Co-executor

If a co-executor lacks the capacity to act, complexities arise as they cannot renounce their role or comprehend a ‘Notice of Power Reserved’. The remaining co-executors must determine if a Lasting or Enduring Power of Attorney exists and, if so, obtain a copy. This allows communication with the appointed attorney, if necessary.

Additionally, if probate is needed, medical certification of the executor’s incapacity may be required alongside the grant application.

Minor Co-executor

Co-executors under 18 years old at the time of death cannot execute estate matters or apply for probate. The other executor(s) can proceed with the grant application while awaiting the minor executor’s 18th birthday, sending a ‘Notice of Power Reserved’ to them. Upon reaching legal age, a new grant application may be required to finalise outstanding estate matters.

Missing Co-executor

Every effort should be made to locate a missing co-executor, with responsibility falling on the other named executors or beneficiaries. Exhaustive searches through social media, phone books, and professional genealogist companies should be conducted. In cases where probate is necessary and the co-executor cannot be found, the Court may grant permission to proceed with the application in exceptional circumstances, once all search avenues have been exhausted.

Ceased Trading of a Professional Co-executor

If a professional firm serving as a co-executor has ceased trading, verification with the Solicitors Regulation Authority (SRA) is advisable. Confirmation of cessation should ideally be obtained in writing from the SRA and submitted to the Probate Registry if probate is required. If the firm has merged or changed names, the successor firm typically assumes the role of executor as stipulated in most Wills.

Choosing Your Executors

Selecting the right executors for your Will is a critical decision that can greatly impact the administration of your estate.  If suitable candidates aren’t available, consider appointing a professional executor – we can help with this here at ELM.

Professionalism and Trust

Ensure your chosen executors demonstrate professionalism and trustworthiness. Look for individuals with integrity, reliability, and expertise in legal and financial matters related to estate administration.

Cooperation and Willingness

Select executors who are willing to collaborate effectively and communicate openly. Prioritise individuals who can work well together to streamline decision-making processes and minimise conflicts during estate administration.

How Many Executors Can I Have?

There is no strict limit on the number of Executors you can appoint in your Will. However, it’s generally recommended to keep the number manageable, typically no more than four executors. Having too many executors can lead to complications and delays in estate administration. Consider the complexity of your estate and the availability of suitable candidates when determining the number of executors to appoint.

Why Choose ELM? 

ELM Legal Services is your trusted partner for probate and estate administration. With an extensive track record of aiding over 30,000 clients in England and Wales with Wills, Probate, and trusts, we bring invaluable expertise to the table.

Our team understands the ins and outs of estate law and planning. We offer practical advice tailored to your situation to ensure that your estate affairs are handled properly and aligned with your wishes.

Partnering with ELM means peace of mind. We’re committed to providing excellent legal services, ensuring that your legacy is preserved and your loved ones are financially secure. Trust ELM to guide you through estate administration with care and expertise.

Get In Touch 

For further information on probate and estate administration, don’t hesitate to get in touch with us today by calling 0117 952 0698 or submitting a free, no-obligation enquiry. Our friendly team of experts will be happy to help.