Joint Executors of a Will in NSW: What Happens When Two People Are Appointed?

Co-Authored by Daniel De Maria

KEY TAKEAWAYS:

• Joint executors generally need to act together – Appointing two or more executors means they will generally share responsibility for administering the estate and may all need to participate in obtaining Probate.

• Disagreements can cause delays – Joint executors may encounter difficulties if they disagree about matters such as selling property, paying expenses, managing assets, or making distributions

• An executor can choose not to act – Before Probate is granted, an executor may be able to formally renounce Probate, provided they have not already interfered with the estate. Renouncing the role does not generally mean giving up their entitlement as a beneficiary.

• Consider substitute executors when preparing your Will – A Will can provide for alternative or substitute executors if an appointed executor dies, renounces probate, or is otherwise unable or unwilling to act. Choosing executors who can work together is an important practical consideration.

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When preparing a Will, a person may choose to appoint multiple people to act together in administering their estate, such as a spouse and adult child, two children, or other trusted individuals. Appointing joint executors can provide reassurance that more than one person will be involved in administering the estate. However, it also means that the executors will need to work together throughout the administration process. In New South Wales, it is therefore important to understand what appointing joint executors means and what can happen if the executors cannot agree, or if one executor is unable or unwilling to act.

What is a joint executor?

An executor is the person appointed under a Will to administer a deceased estate. Their responsibilities include identifying and collecting the deceased’s assets, paying liabilities, and distributing the estate in accordance with the Will.

Where a Will appoints two or more people as executors, they are expected to act jointly. For example, a Will might appoint:

• “My children, John Smith and Jane Smith, jointly as my Executors.”

This means that, following the death of the testator, both John and Jan will need to participate in the administration of the estate. There are exceptions to this, for instance, if one has died or has indicated that they do not wish to apply by renouncing their position.

This is because the Supreme Court of New South Wales recognises and grants authority to multiple executors in a joint capacity, and as a result each executor is required to act together with the other executor(s) in dealing with the estate. In practical terms, one executor generally cannot simply exclude the other or make decisions concerning estate assets without the other executor’s involvement.

Accordingly, where there are joint executors, both executors will generally be required to sign documents and participate in decisions concerning the administration and distribution of the estate.

 

What happens if one executor does not want to act?

A person named as an executor is not necessarily required to take on the role. Before Probate is granted, an executor who does not wish to act may renounce Probate, provided they have not already interfered with estate property. The Supreme Court also recognised circumstances where an executor may reserve their right to apply for Probate at a later time.

However, this is different from simply ignoring the role. Where an executor refuses to participate but does not formally renounce, there are procedures that may allow the other executor or executors to proceed.

Once Probate has been granted, an executor generally cannot simply renounce their appointment. In certain circumstances, the Court may become involved where an executor needs to be removed or where there is a problem with the administration

However, it is important to note that, in most cases, renouncing executorship does not mean renouncing a person’s entitlement as a beneficiary. Where an executor is also a beneficiary of the residuary estate, they will generally remain entitled to their share of the estate even if they choose to renounce their role as a joint executor.

 

What if joint executors disagree?

One of the potential difficulties with appointing joint executors is that disagreements can delay the administration of an estate.

The Court identifies executor duties including collecting estate assets, preserving those assets, keeping proper accounts, paying debts, and distributing the estate in accordance with the Will and the law.

If two executors have fundamentally different views about how an estate should be administered, decisions may become difficult to make

For example, executors might disagree about:

• Whether a property should be sold or retained;

• The timing of sale;

• whether particular estate expenses should be paid;

• whether an asset belongs to the estate; or

• when distributions should be made to beneficiaries.

Where executors are unable to agree, or one executor is unwilling to participate in the administration of the estate, this can significantly delay the administration process. Matters which would ordinarily be dealt with relatively promptly may require further correspondence, legal advice, mediation, or Court proceedings before they can be resolved. This can also increase the costs of administration, including legal and Court costs, which may ultimately reduce the amount available for distribution to the beneficiaries.

 

Should you appoint more than one executor?

There is no universal answer to whether a Will should appoint one executor or multiple executors.

Some Will-makers prefer to appoint two people because they want more than one trusted person involved in the administration of their estate. Others may prefer to appoint a single executor to avoid the possibility of disagreements or delays.

Another option is to appoint a substitute executor. For example. A will might appoint one person as the primary executor and another person to act if the first person has died, or is otherwise unable or unwilling to act.

 

Consider the practicalities when making your Will

Choosing your executor is an important part of estate planning. It is worth considering not only who you trust, but also who is likely to be able to work together effectively if more than one executor is appointed.

Joint executors can provide accountability and shared responsibility, but they c an also create practical difficulties if the relationship between the executors breaks down or one executor is unresponsive.

Before signing your Will, consider discussing your proposed executor appointments with a solicitor. Legal advice can explain the different options available and ensure that your Will is drafted to reflect your wishes, including what should happen if an appointed executor dies, renounces probate, or becomes unable to act.

A well-drafted Will should not only set out who receives your estate, it should also carefully consider who will be responsible for making that happen.

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