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.