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Friday, January 17, 2014

Must co-executors file together for probate, or can just one of them file?

A reader recently asked me, by way of comment on this blog, whether co-executors named in a will must apply together for probate, or whether it is alright for just one of them to file the documents alone. I thought the answer to this might interest many of you, so I am answering it here.

When co-executors are named in a will, and both of them intend to take on the job of acting as executors, both of them must sign the application for probate. The document contains portions that must be sworn before a commissioner for oaths, and both co-executors must swear to the truth of the information.

Therefore, they must file the application together. The courts will not accept an application filed by just one co-executor.

The situation is different if one of the co-executors does not want to accept the job as executor. In that case, the co-executor who is not going to act should not sign the application for probate. Instead, he or she should sign a document called a "Renunciation", which formally allows the co-executor to withdraw from being an executor. The renunciation document would be filed along with the application for probate to show the court why only one co-executor is filing even though two were named in the will.

By the way, there are strict rules regarding whether someone is allowed to sign a renunciation, so you should consult a lawyer local to you before signing one.

4 comments:

  1. Hi Lynne,

    Thank you for filling my head with so much knowledge. I just wondered if when two people are made executors, can one of the executors hire a lawyer to handle the estate without the written consent of the other executor? I at no time was given the opportunity to do that and my brother's lawyer just laughed at me when I asked the question and said it wasn't unusual. Please help!!!

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    Replies
    1. No, the written consent of a co-executor is not required.

      If the lawyer who has been hired is handling the estate, he is not your brother's lawyer. His clients are both of the executors. He may know your brother better than he knows you, and may prefer to communicate only with one, but your participation is required.

      If you find that you are being left out of meetings and decisions, you might remind your brother and the lawyer that your signature is required on the application for probate and other documents. If they exclude you from meetings, the lawyer will have to take the time to explain things to you in a separate meeting, which will cost more money and eat into the estate. I doubt your brother considered that.

      You have equal legal authority as the other executor. Hang in there.

      Lynne

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  2. Thank you so much for your quick response Lynne. This has gone on for over a year and I questioned my brother over and over again as to why we kept being brought in separately to sign papers and he kept saying he didn't know. I asked if he thought we were paying more because of going in separately and got the same answer. I had no idea even what we were paying the lawyer and was concerned because my brother has a high end way of thinking. It all came to a head a few months ago when I saw the final numbers and questioned the lawyer as to why I had been in the dark all along. His response was that my brother had hired him therefore he was the client and I wasn't. If you wonder why it took me so long to get to the bottom of this, it was because I had lost my husband to cancer just weeks before my mom passed away. As I had been doing the paperwork concerning his estate, I offered to do some of the work but my brother wouldn't let me near the papers yet wouldn't do any of the easier things to keep the costs down. Once I started asking the questions, I wouldn't sign the papers. I asked to have copies of all documents, including expenses that my brother had applied for so that I could go over everything, at a cost to me of course, and it all became quite clear how little I knew. I had on two occasions asked the secretary for copies of papers but she laughed at me and explained that theirs was a busy office and that I would get the papers 'in due time'.It finally came to light that my brother had received interim reports as to costs but I hadn't. A fairly uncomplicated estate cost us nearly $60,000. I feel pretty deceived. The sad part in all of this is that I looked after my mom daily for many years while my brother sat on the sidelines. I really needed the money but to him it was pocket change.If I could do it all over again I would have made sure I had the facts right from the start. I should never have been so trusting. My brother and I are no longer speaking. Tracy

    ReplyDelete
  3. Your blog as well as the comment i read is very interesting and informative. My mother told me and my 2 other siblings that she just made her last will and testament a couple of months ago and when I read Tracy's comment, it made me realize that I should be more careful regarding this topic. I wish my 2 other sibling will not do the same as what Tracy's brother had done to her. @ Tracy, be strong and fight for your right!

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