Co-Executors in BC: When Naming Two Helps and When It Backfires

If you have more than one adult child, it can feel natural to name them all as executors. It seems fair, and it spreads the work. Sometimes it works well. Sometimes it turns a grieving family into a standoff over the house.

This article explains how co-executors work in BC, what happens when one does not want to act or when they disagree, and how your will can reduce the risk of deadlock.

Why people name two executors

Parents with more than one adult child often want to name them together. The reasons are understandable: it feels fair, it shares the work, and it means no one child appears to be favoured. Two executors can also check each other's work, and if one lives far away, the other can deal with the house and the bank in person.

Those benefits are real. So are the costs, and they are easier to manage if you plan for them in the will rather than leave them to your children to sort out. Our general guide to choosing an executor in BC covers who can act; this article looks at what happens when more than one person does.

What the law expects of co-executors

Under section 142 of the Wills, Estates and Succession Act (WESA), a personal representative has the same authority over the estate as the deceased would have had if living, subject to any contrary intention in the will. When two or more people share that office, WESA does not supply a voting rule, and the Trustee Act's majority provisions cover only narrow steps, such as paying estate money into court. The general law on when one executor may act alone is technical, and in practice banks, land title transfers and investment firms usually ask for every acting executor's signature, so a disagreement between two executors can stall the estate.

The court process reflects this. Under the Supreme Court Civil Rules:

• Notice goes to each executor. A named executor who is not applying, but whose right to apply is equal to or ahead of yours, must receive the notice of proposed application (Form P1).
• Each applicant swears an affidavit. One applicant swears the main affidavit (Form P3 or P4), and each other applicant swears a supporting affidavit in Form P8.
• One address for service. Joint applicants must adopt a single address for service that applies to all of them.

When one executor would rather not act

Naming two people does not oblige both to serve. A named executor can renounce under section 104 of WESA, which ends the appointment as if they had never been named. Someone who does not want to step away completely can simply not join the probate application. Section 107 says that an executor who does not join is not liable for estate assets that come into the hands of a co-executor, whether or not the right to apply later is reserved. Under section 148, if a co-executor renounces, or stands aside with the right to apply later reserved in the grant, the executors who take the grant can deal with the estate as validly as if every named executor had signed.

If a named executor neither applies nor renounces, section 108 lets anyone interested in the estate use the court rules to require that executor to accept or renounce, or to explain why administration should not be granted to them or to someone else willing to act. That prevents a silent co-executor from holding the estate in limbo indefinitely.

When co-executors disagree

Disagreements tend to arise over predictable questions: whether to sell the family home or keep it, when to sell, which realtor to use, whether to pay a sibling for work done on the estate, or how quickly to distribute. If co-executors deadlock, the main tools are:

• Directions from the court. Section 86 of the Trustee Act, which section 143 of WESA applies to personal representatives, allows an executor to apply to the court for its opinion, advice or direction on a question about managing or administering the estate. Under section 87, an executor who acts on that direction is treated as having discharged their duty on that point.
• Removal. Under section 158 of WESA, a person with an interest in the estate can apply to remove an executor. The listed grounds include an executor who is unable to make the decisions needed, is not responsive, or unreasonably refuses to carry out their duties, to an extent that hampers the efficient administration of the estate. If an executor is removed, section 159 generally requires the court to appoint a substitute. Our article on removing an executor in BC explains that process.

Both routes cost time and money that would otherwise go to the beneficiaries, which is why it is worth designing the arrangement carefully at the outset.

Will clauses that reduce the risk of deadlock

If you do name more than one executor, the will can set the rules:

• A decision-making clause. The will can say that decisions are made by majority, or that one named executor has the final say on particular matters, such as the sale of real estate. A majority rule needs three or more executors and should be set out expressly in the will.
• A lead executor. One person handles day-to-day administration and the other is consulted on major decisions.
• Authority for routine matters. A clause allowing either executor to handle routine steps alone, such as dealing with the bank or the realtor, so the other does not have to attend every step.
• A named alternate. If one co-executor dies, renounces or is removed, the will should say whether the other carries on alone or an alternate steps in.
• Instructions on the family home. Many disputes are about one asset. A clear direction to sell, or an option for a child to buy at appraised value, removes a common flashpoint.

Naming all your children: fairness versus function

Being an executor is a job, not a share of the inheritance. Naming one child does not give that child a bigger share, and the executor must act even-handedly for all beneficiaries. Some parents explain this to the children who are not named; others name one child and a professional co-executor; others name two children who live nearby and have shown they can work together. Our step-by-step guide to executor duties gives a sense of what the role involves day to day.

If your children already disagree, naming them together rarely makes that easier. If they get along, a well-drafted clause can let them share the role without leaving them to improvise.

Thinking about naming more than one executor? Plan the roles before you sign

Our wills and estate planning lawyers can help you decide how many executors to name, draft clauses on how they make decisions, and set up alternates so your estate can be administered without a standoff.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.