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Saturday, April 4, 2015

What do I do if the co-executor won't help me with the estate?

The main reason I write this blog is to try to answer questions from readers who are thrust into an estate as an executor or beneficiary for the first time, and are not sure what to do. Sometimes just a bit of information is enough to start someone down the right path. In this case, a reader asked me about his brother, named as a co-executor, who refuses to do anything. I think the unco-operative brother may be one of the people who has heard misinformation about executorship but isn't willing to ask questions or do research to find out the facts. His refusal to become informed is causing a problem for everyone else. Here is the reader's question and my response.

"What happens when two brothers are named co-executors of their father's will but one brother won't respond to requests to assist with the estate?"

It's not really uncommon for a named executor to refuse to handle the role. The reasons for the refusal vary widely, but the most common are that the named person is afraid that he will become responsible for the debts of the deceased (not true) or that he will become embroiled in family disputes (true). Other reasons could be anything from illness to being too busy to bad feelings towards the deceased.

I assume from the wording of the question that you are the brother who is willing to work on the estate, and that you have already tried the common sense steps of talking to the other brother to try to deal with his objections. So, let's skip that part and go right to what you can and should be doing about it.

Even though your brother is refusing to get involved, you still have a responsibility to carry on with the estate, so we need to look at how you can do that. When the bank and the land titles registry are asked to transfer the deceased's assets, they will look at the will and see that there are supposed to be two executors, and they won't deal with just one.

The easiest and cleanest way for you to go forward is for your brother to renounce, or give up, his right to be a co-executor. That is easily accomplished by his signing a very simple renunciation form that you would then include along with the will when you apply for probate. Most reluctant executors are okay with signing a renunciation once they realize that it frees them from the estate with no repercussions.

If your brother is one of those annoying people who deals with matters by simply digging in his heels and hoping it all goes away then you're actually better off being a sole executor than trying to work with him. You will, however, have to explain to the court why two executors are named and only one is acting on the estate. This will most likely involve a request to the court to remove your brother as executor. It will add to the delay and costs of the estate.

As incentive to get your brother to sign a renunciation form, you might suggest to him that if you have to apply to the court to remove him, you will deduct the cost of the court application from his share of the estate. That may or may not be the case (most likely the cost would end up being borne by all of the beneficiaries) but it may make him realize that his refusal to co-operate means that the court is going to have to be involved, and that it's going to cost money so he is going to inherit less that he would if he tried to be co-operative.

In my view, those executors who simply refuse to do anything and more or less barricade the door are some of the most selfish people on earth. They cause so much trouble for everyone else in the family, for no reason other than they are afraid to even talk to a lawyer to find out what to do.

Check the will for any wording about the number of executors required, or about alternate executors. Sometimes wills contain instructions about bringing in another person if one executor is unable or unwilling to act. If another person is named as an alternative, he or she may become your co-executor once your brother is out of the picture.

If you are going to deal with this estate yourself and your brother refuses to sign a renunciation, I suggest that this isn't something you want to attempt without a lawyer. In law, being an executor is considered a right and a benefit, so without your brother's willingness to sign off, you have to persuade the court that your brother should be stripped of a right and a benefit. It gets complicated.

I also suggest that any parents reading this take a moment to consider whether naming both or all of the kids as executors is actually a good idea. Not everyone is cut out for the job, even if they are your kids.





12 comments:

  1. Love your blog!!
    I know you have talked about probate many times...but i still have a question:
    If there is a small account (that the bank does not want/need a Grant of Probate for) and RRSP's and RIFs naming beneficiaries - then probate isn't required and then therefore the value of the personal items, household items, jewellery, vehicles etc obviously wouldn't be probated either.
    BUT if there is a house involved that needs probate, does that now mean the value for all the personal items, household items, jewellery, vehicles etc need to also be included on the probate? I know the RRSPs and RIF's would still not be required to be included since beneficiaries were named....but what about the small account even though the bank didn't require a Grant of Probate?
    Just need to know if probate is an "all or nothing" thing. (actually, more like the saying backwards "nothing or all" :-) )

    ReplyDelete
    Replies
    1. If bank account is over 25,000, was a joint account and then parent wanted it in their own name. Is there a way of account not going to probate?

      Delete
    2. To answer the original question, if you are applying for probate you have to include all of the assets within the jurisdiction, so yes you would have to include vehicles, household items, et.

      Lynne

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    3. The question about the $25,000 joint account is going to need a bit more information before I can answer it. Who were the joint owners? I'm not asking for names here, but were they spouses, or was it parent and child? And if so, was it originally the parent's account to which the child was later added, or was some of the money contributed by the child? That will help me answer the question about whether it goes to probate.

      As for the parent "wanted it in their own name" - I'm not sure what to make of that. How did the parent indicate this wish?

      I suspect that account is going to probate, but as I said, I'd like more facts.

      Lynne

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  2. My brother and I are co-executors of our late father. Probate has finished two months ago. I took the necessary Certificate of Appointment to the banks and signed the necessary documents. I have been waiting for my brother to sign the transfer documents. He is stalling the process and copying emails to the estate lawyer and the branch manager of the estate account which I don't have a problem with but he is accusing me of not doing my job as Coexecutor by waiting a month to deliver the documents to my father's banks and signing transfer documents. He is lying and attempting to mislead the estate lawyer and the branch manager with admitted misinformation. He has also admitted to withholding important information about the estate on several occasions in emails.He is also being verbally abusive in emails. What can I do as Coexecutor?

    ReplyDelete
    Replies
    1. I don't see what he gains by lying and misleading the estate lawyer and the bank manager. What would be his purpose? Is he trying to have you removed as executor?

      You have the following options. 1, learn to get along. 2, go to mediation to work out how you two are going to proceed and who is going to do what, and when you're going to do it. 3, both of you resign and hand over the job to a neutral third party such as a trust company or the public trustee. Or 4, ask the courts for help. To be honest, I don't recommend that you go to court because I believe the judge would send both of you packing with instructions to figure this stuff out like adults.

      If you two can't work it out and the estate suffers, just both of you hand the matter over to someone who can get it done.

      Lynne

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  3. My eldest brother is listed as executor in my Mother's will and I am backup executor (in case he is unable to do the job).
    The only beneficiaries are my 4 brothers and I. Three of my brothers, including myself do no agree with my eldest brother being listed as executor. (There are too many reason why to list here). Also, the eldest brother does not talk with any of us. (again, there are too many reason why to list here).
    What can the 4 of us, (that do not agree with him being executor), do before my mothers passing or upon my mothers passing?
    Thank you

    Travis

    ReplyDelete
    Replies
    1. There is very little you can do.

      The choice of executor is for your mom to make. You can't change it for her or make her change it. If you forced her to change her will, it would be invalid due to the fact that you forced her. The only thing you can do is express your concerns to her and see if she changes her mind. If she no longer has mental capacity to deal with legal documents, then you're too late as the will can't be changed.

      After your mom passes away, your brother can take control of the estate without anyone's approval or agreement. You and your brothers don't have to like it. If he is doing the job properly, then there is nothing you can do. If he turns out to be a terrible executor, then you have some options, including trying to get him booted out of the executor job so that you can take it over.

      Lynne

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  4. My sister is the executor and I am the co-executor to my Father's estate do I have any rights or responsibilities or is everything up to the executor?

    ReplyDelete
    Replies
    1. If you two are co-executors, you have equal rights and equal responsibilities.

      Lynne

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  5. My mother is thinking of making my brother and i both executors in her will. The reason is so we can get things done faster...i.e. I can do half the tasks and he can do half the tasks thus the estate will be wrapped up easier and quicker.
    Is this correct? Can we do tasks separately or do we have to do and sign everything together?

    ReplyDelete
    Replies
    1. It's partly correct. Both of you have to sign everything. There's no way around that. But there's no reason that one of you couldn't call a realtor at the same time the other is looking up the value of a vehicle, for example.

      The real test of whether acting as co-executors will save time is to think about how you two get along. I'm not necessarily talking about whether you fight with each other, though that's part of it. If one is a real go-getter and the other is a laid-back procrastinator, it may be really tough to work together.

      Lynne

      Delete

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