In California, co-executors must act unanimously unless the will explicitly authorizes independent action. However, if the estate has three or more co-executors, decisions can be made by a majority vote.
- Only appointed co-executors have authority to act. A will may name multiple co-executors, but if some cannot be located or are otherwise unable to serve, the court may appoint a sole executor, who can then act independently.
- Co-executor disputes can stall probate. When unanimous consent is required, a lack of cooperation can delay administration, increase costs, and postpone distributions to beneficiaries.
- A co-executor can be removed. Although a personality clash alone generally is not enough, removal may be sought for misconduct, persistent refusal to cooperate, or mismanagement of estate assets.
Can an Estate Have Multiple Executors in California?
In California, it is permitted for an estate to have multiple executors. In fact, it is relatively common. For example, parents may name all their children as co-executors to avoid showing favoritism toward one child or to ensure each child has an equal voice in handling the estate.
However, being named as an executor in a will does not automatically give someone authority to act on behalf of the estate. Each executor must first be formally appointed by the probate court. As a result, even if a will names multiple co-executors, not all of them may ultimately serve.
For example, a court may determine that a named co-executor is unsuitable to serve, or a co-executor may decline the appointment. In either case, the estate may proceed with a sole executor or fewer co-executors than the deceased originally intended.
Co-Executors vs. Alternate Executors
While the titles may sound similar, co-executors and alternate executors serve fundamentally different roles, with distinct responsibilities and legal implications.
- Co-executors serve concurrently and, once appointed by the court, may act on behalf of the estate.
- Alternate executors strictly serve as backups, stepping in only if the primary executor or executors are unable or unwilling to serve, resign, or are removed and the alternate executor is appointed by the court.
Co-Executors vs. Co-Administrators
Administrators, rather than executors, are generally appointed when a person dies without a will or if someone other than a will’s nominated executor(s) is appointed as personal representative. Depending on the circumstances, the court may appoint more than one administrator.
Co-administrators are typically appointed according to California’s statutory order of priority, which generally gives surviving spouses first priority, followed by adult children and other close relatives. For example, if a deceased person’s two children both have priority and wish to serve, the court may appoint them as co-administrators.
Co-administrators and co-executors generally have the same administrative and fiduciary duties — to marshal the estates assets, pay the decedent’s debts and administration expenses, account to the beneficiaries or heirs, and ultimately distribute the estate’s property to those who are entitled to it. While an executor distributes property to the named beneficiaries in a decedent’s will, an administrator of an intestate estate distributes estate assets to the deceased person’s legal heirs according to California’s intestate succession laws.
When Can One Executor Act Without the Others?
One co-executor may act alone only when authorized by the probate court. If there are two co-executors, California law generally requires both co-executors to act unanimously on behalf of the estate.
The exception is when there are three or more co-executors. In that case, California law generally allows a majority of the co-executors to act rather than requiring unanimous consent.
A co-executor may be able to act without the others in limited circumstances, including:
- A co-executor is unable or no longer able to serve. If a named co-executor cannot be located, is deemed unsuitable, declines to serve, or is otherwise unable to act, they may not be appointed, potentially leaving the remaining co-executor with authority to act alone. The same may apply if a co-executor resigns or dies after administration has begun.
- The co-executor is performing a routine task. Although major decisions or transactions may require unanimous consent or, when applicable, majority approval, co-executors can generally handle routine administrative tasks independently. Examples may include paying a utility bill for an estate property or collecting the estate’s mail.
- There are three or more co-executors. Having three or more co-executors does not, by itself, give any one co-executor the authority to act independently. However, a majority of the co-executors are usually permitted to act on behalf of the estate instead of requiring unanimous consent.
Understanding the rules governing co-executor consent is important for both co-executors and beneficiaries. A co-executor who acts unilaterally without the required authority may exceed their legal powers and potentially breach their fiduciary duties, which can result in removal, financial liability, or other consequences.
Can a Co-Executor Be Removed?
An interested party, such as a beneficiary, heir, or co-executor, can generally seek the removal of a co-executor, but there must be valid grounds for the request. A personality clash or disagreement between co-executors is generally not enough to justify removal.
Valid reasons for seeking the removal of a co-executor may include:
- Continued refusal to cooperate: Co-executors may legitimately withhold consent when they have concerns about a proposed transaction, but administration should generally continue moving forward. If a co-executor repeatedly refuses to cooperate, even with basic tasks like sharing financial records or completing probate paperwork, they may be improperly stalling administration and exposing the estate to financial harm.
- Breach of fiduciary duty: A co-executor who violates their fiduciary duties, such as by disregarding the will’s terms or placing their personal interests ahead of the beneficiaries’ interests, may be subject to removal and other penalties.
- Mismanagement: If a co-executor’s actions, or inaction, cause estate assets to lose value or otherwise place the estate at risk, removal may be appropriate to prevent further harm.
The court generally distinguishes between ordinary disagreements and conduct that genuinely threatens the estate or prevents its proper administration. Courts may also consider whether the co-executors made a good-faith effort to resolve their differences before seeking judicial intervention. This helps balance the need to protect the estate with the deceased person’s wishes regarding who should serve as executor.
How to Handle a Co-Executor Not Cooperating
Co-executors do not have to agree on everything, but they are expected to cooperate for the good of the estate. This may require setting aside personal grievances and focusing on the estate’s and beneficiaries’ best interests until administration is complete.
If a co-executor withholds consent, they should have a legitimate reason for doing so. Persistent, unjustified obstruction can delay administration, harm the estate, and potentially expose the responsible co-executor(s) to legal consequences.
Here are the steps to take when a co-executor refuses to cooperate:
1. Attempt informal resolution
Start by meeting with the co-executor to discuss the disagreement or sending a written explanation of why the proposed action is in the estate’s best interests. If these efforts fail, a more assertive letter can outline the potential consequences of continued noncooperation, including removal or financial liability. The prospect of legal action may be enough to encourage the co-executor to resume cooperating.
2. Preserve evidence
Strong documentation can be important if court intervention ultimately becomes necessary. Co-executors and other interested parties should maintain logs of relevant emails, texts, letters, and other communications. For example, if a co-executor repeatedly ignores calls and messages, documenting multiple good-faith attempts to communicate can help demonstrate a pattern of noncooperation.
3. Obtain legal guidance
A skilled California probate attorney can review the will and explain the co-executors’ respective powers and obligations, help facilitate productive discussions, and propose practical solutions when emotions are running high. An attorney can also assess whether the conflict is manageable or has become serious enough to warrant court intervention.
4. Consider mediation
If informal efforts fail but the parties are not ready to pursue litigation, mediation can provide a middle ground. The parties negotiate with the assistance of a neutral third party in an effort to reach a mutually acceptable resolution. Mediation is often less costly and time-consuming than litigation and can help preserve working relationships among the parties.
5. Seek court intervention
If other efforts fail, the final step may be to petition the probate court for appropriate relief. Depending on the circumstances, the petition may seek to compel the co-executor to comply with their duties, authorize certain actions without the co-executor’s consent, remove the co-executor, or impose financial liability for losses caused by their conduct.
In some cases, the prospect of court intervention is enough to motivate an uncooperative co-executor to resume working toward the estate’s proper administration, making litigation unnecessary.
Co-Executors of Estate FAQs
Do all co-executors need to sign estate documents?
It depends on how many co-executors have been appointed.
If there are two co-executors, both generally must sign estate documents, particularly those involving to non-routine or discretionary matters.
If there are three or more co-executors, a majority is generally sufficient for acting on behalf of the estate. However, even when only majority approval is required, financial institutions and title companies may require all co-executors to sign their documents to reduce their own potential liability.
If a co-executor refuses to sign, they should have a legitimate reason, such as believing the proposed transaction is not in the estate’s or beneficiaries’ best interests. If the refusal is instead based on personal disagreements or grievances, the other co-executors may petition the court to compel compliance or seek the co-executor’s removal. However, the parties should generally make a good-faith effort to resolve the dispute among themselves before seeking court intervention.
What happens when co-executors don’t agree?
Persistent disagreements that cannot be resolved can stall estate administration and ultimately harm the estate.
Disagreements over major transactions can delay administration and unnecessarily increase estate expenses, particularly if the estate remains open for an extended period.
If disagreements become serious enough to interfere with administration, legal intervention may be necessary. The co-executors should generally first attempt to resolve the dispute through direct communication, legal counsel, or mediation. If these efforts fail, an interested party may petition the probate court for the appropriate relief. The remedy will depend on the nature of the disagreement, the terms of the will, and the extent to which the conflict is affecting the estate.
Are co-executors a good idea?
It’s often a matter of personal preference. Naming co-executors can be beneficial when an estate is large, involves complex assets, or has numerous beneficiaries. It can also give multiple loved ones a voice in administration or provide additional checks and balances.
However, co-executors can also complicate administration. If unanimous consent is required, disagreements may delay transactions, increase probate costs, and postpone distributions to beneficiaries.
Consider the relationship between your proposed co-executors before naming them. For example, appointing two children who frequently disagree or have a strained relationship could create unnecessary conflict during administration.
An estate planning attorney can help determine whether co-executors, a sole executor, or a professional fiduciary best fits your circumstances. A professional fiduciary may be particularly appropriate when you want a neutral party to administer the estate and avoid the appearance of favoring one family member over another.
Who cannot act as an executor in California?
In California, minors and individuals who are of unsound mind, subject to a conservatorship, or deemed unfit to serve generally cannot act as executors.
Someone may be deemed unfit to serve based on circumstances that raise serious concerns about their ability or willingness to administer the estate properly and with integrity. This may include a history of financial crimes, such as fraud or embezzlement, or an irreconcilable conflict of interest with the estate or its beneficiaries.
Do all co-executors have equal power?
Generally, yes. Unless a court order gives certain co-executors greater power or grants one co-executor final decision-making authority, co-executors generally have equal power when administering an estate.
When an estate has three or more co-executors, however, decision-making generally shifts to a majority-rule structure. This does not necessarily give any co-executor greater authority, but it can allow a majority to approve a transaction over the objection of a dissenting co-executor.
Can an executor name a co-executor?
No, an executor generally cannot name or appoint a co-executor. The person creating the will generally nominates the executor, while the probate court formally appoints the executor and determines who may serve.
That said, an executor may petition the court to appoint an additional executor if assistance is needed or, in some circumstances, request the appointment of a successor or alternate executor if they intend to resign. However, the court is not required to grant the request and will make its decision based on the circumstances of the estate.
Does a co-executor get paid in California?
Yes, co-executors are generally entitled to compensation in California. Co-executor fees are typically divided equally between the co-executors or according to an agreement among the co-executors. The total compensation for ordinary services generally cannot exceed the amount permitted for personal representatives under California’s statutory fee schedule.
Co-executors may also receive additional compensation for extraordinary services, such as selling estate property or preparing complex tax returns. However, they must justify these fees to the court and obtain approval before receiving them.
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