An executor in Canada takes care of closing someone’s estate when they pass away, but what happens when there is more than one executor named in the will? This is called having joint executors,and it usually happens when a parent chooses more than one child to take on the role. Why would you have more than one executor of a will? Doesn’t that make it more complicated?
“Co-Executors are supposed to make decisions jointly regarding the Estate assets. Neither has the legal right to act alone.”Vanessa Dedominicis, Pushor Mitchell LLP
Canadians are worried being an executor is too much work for just one person. Debts, beneficiaries, taxes, pet care, real estate, and funeral arrangements are just the tip of the iceberg when it comes to executor duties.
Consider this before appointing joint executors…
Parents aren’t just trying to make the job easier for their joint executors, they’re also trying to keep things fair.
It’s understandable that people want all of their children to be equally involved in the decision-making process, but there are a few issues that come along with naming multiple executors:
- The estate may take longer to close if your executors have issues agreeing on the will interpretation.
- If one executor lives out-of-town, a majority of the tasks may fall to the other executor.
- If you do not make all of your children your executors you could be causing resentment (like if you choose two of your three children.)
- Your joint executors might have a strained or non-existent relationship, making communication very difficult.
- One executor could be too busy or irresponsible for their duties, leaving a bulk of the work to one person anyway.
You should speak to your legal professional when creating your will about joint executors and the possibility of including a “majority rule” clause.
What is “Majority Rule” in a will?
Majority Rule means that a majority of your trustees and/or executors must agree on a decision before it is made and when there are multiple people acting as executor or trustee, one person cannot act unilaterally.
“When more than one person is appointed to act as ‘co-executors’, decision-making as between the executors will be governed by the will. If the will is silent on the issue, then unanimous consent is required. Therefore, wills frequently set out a ‘majority rule’ standard for decision making. A co-executor should not act unilaterally, nor hide information or facts from the other executors.”OntarioProbate.ca
The Benefits of Joint Executors
Even with the drawbacks, having joint executors is still a popular choice and does work out well for many Canadians who know their executors are cooperative and up to the task.
Here are some of the benefits we see from joint executors working well together:
- Having joint executors offers more than one perspective, and when interpreting a will, this could come in handy to fully understand the intentions of the deceased.
- More hands make for lighter work! There will be more than one person working on the estate administration tasks, which typically take up to two years to complete. This not only divides up the workload, but it also allows each person to leverage their strengths. For example, if one executor is a finance professional they could handle the taxes.
- Having joint executors also means that there is built-in accountability. The reality of being an executor is that many people are watching you closely – namely beneficiaries – and with two sets of eyes on everything, documenting everything, and making every decision logically together, it helps to reduce the risk of estate litigation.
- Although it is not pleasant to think about, if one of your named executors passes away the other joint executor would already be named and take over as the sole executor. (Naming a backup executor in your will is something that we recommend doing anyway, whether you have multiple executors or just one.)
“Whether you decide to appoint one, two, or more executors, here’s some advice: share the contents of your Will with your executors while you’re still alive. It will give them an opportunity to ask questions, get clarification or make suggestions if the Will overlooks some material matter. Once you’re gone, no one can ask you anything….why leave your family wondering, maybe for the rest of their lives, why you did or didn’t do this or that? It’s just good planning to eliminate surprises. In our experience, surprises are rarely a good thing in estate matters.”Scot Dalton, CEO ERAssure
Joint Accounts Held as Tenants Can Be A Red Flag
Often times, parents will give their children access to their bank accounts to help them manage their money as they get older. This makes it easier to take care of things during the parent’s lifetime, but what happens when they pass away? Does it complicate the estate? The answer is typically yes.
If the intentions of why the account was shared and how it was managed are not clear, it leaves that child open to questioning and legal action from executors and beneficiaries. Another reason joint accounts held as tenants can be a red flag for the estate is the child with access to the account sometimes feels that they are entitled to the remaining asset, often causing tension and litigation.
What can you do to stop this from becoming an estate litigation issue?
- The parent should include their express intentions for sharing the account in their will so it is not left open to interpretation. The more specific and clear the instructions, the better.
- The child (or person) assisting with their finances should keep a journal of decisions that were made, dates they were made on, and any large transactions, investments, or loans. This will ensure transparency in the way the account was managed, for example if a sizeable loan was made to this person without other beneficiaries knowing.
- Upon opening the account, the parent should make it clear if all or a percentage of the account will be left to said child. This can ease the litigation upon passing and make things explicitly clear to the other beneficiaries and executor(s). This is called “tenancy in common” and you can specify it on the account when it is opened. (Keep in mind Probate Tax will still apply upon passing.)
We highly recommend all of the above actions in order to help mitigate any issues for the child, especially if they are also acting as Power of Attorney.
Joint Executor FAQ
Still have questions about being a joint executor? If you don’t find your answers here, please feel free to browse our in-depth Executor FAQ.
No. Joint executors need to agree unanimously on estate decisions, which is the main reason having multiple people involved can slow down the administration process. One executor cannot overrule the other, and often disputes arise. In very rare cases executors can be named “joint and severally”, which allows them to make some minor decisions without unanimous decision. This method is fraught with issues, which is why it’s rarely used.
QUESTION: What Does it Mean to be Named “Jointly and Severally”? And What Does That Mean for me, the Executor?
This is an uncommon practice for anyone naming or drawing up a will to include and is rarely seen because the language is too vague for something as critical as the appointment of an executor. If you do come across this, it means that, even though the language states both independent and separate, both named executors must be involved in almost all of the decision making.
What does that mean for you, the Executor? It could take longer to execute tasks if (for example) one executor lives farther away or is not complying. You may be able to complete some minor estate tasks separately, like picking up an asset or signing a receipt, but likely anything to do with banking or funds will require both executors.
Yes, all executors should sign any documents related to the estate administration. Things like the probate application, property deeds, estate bank accounts, and tax returns always need all signatures. The estate bank account should be set up to require the signature of all executors for cheques and withdrawals, too. In fact, if there are joint executors they usually will not let you set up the account without it.
You can appoint more than two people to be joint executors, but it is not recommended and rarely done. Imagine needing the signature of five different brothers and sisters for every single document, but they live scattered across Canada?
Typically three executors are only appointed to very large estates, like when the deceased owned a large business, several properties, and multiple investments. If you don’t like the idea of joint executors, you can also name an alternate executor as a backup incase your first-choice backs down or as a show of trust to prevent someone feeling slighted.
Between when you name your executor and the time they are needed, your relationship with them may have changed, or they themselves may be deceased. That’s why we always recommend that you name an alternate Executor in your will – whether you have joint executors or not.
This is an example of why it’s important to revisit your will and keep it up-to-date. It should reflect your current relationships and assets accurately. (Another common example is if you had a grandchild last year, but have not updated your will to include them yet.)
If joint executors disagree, it can create a big risk for estate litigation. This is one of the biggest problems with having more than one executor. Disagreements can lead to delays in closing the estate, which means delays in the beneficiaries receiving their inheritance, which means potential estate litigation issues.
There are also situations where one executor refuses to do timely work because of a disagreement, and this ends up negatively impacting the estate value. Estate administration errors are a huge red flag and a common cause for estate disputes.Remember, you are financially and legally responsible for any mistakes made when performing your executor duties, whether it was you or your fellow executor. That’s why it’s important to secure Executor Liability Insurance.
Protect yourself and your fellow executors from the financial and legal risks of estate litigation by securing Executor Liability Insurance as soon as you become an executor.
In the event that someone takes you to court for an estate administration error – or any of the many causes for estate disputes – you will not have to pay out-of-pocket for legal expenses and the compensation required in the outcome.Learn more about how to secure Executor Liability Insurance.
Free Estate Planning Resources
Need a little help? Our free estate planning resources can guide you through your executor tasks, close the gaps in your will and estate plan, and prepare your executors for their future role.
- Official Executor Guide
- Free Executor Preparation Course
- Free Personalized Estate Planning Checklist ($200 Value)
- Will Preparation Guide
- How to Prepare Your Estate for Your Executor
- What is Executor Liability Insurance?
- Who should I choose as my Executor?
- What are my Executor duties?
- I’m an Executor right now – what do I do?
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- What will happen to our family cottage?
- How do I include digital assets in my will?