Can I hire a co-executor?

A question I received recently from a reader was "how do I hire a co-executor?" I took this to mean that the reader is acting as the executor on an estate and wants to hire someone to help him. The short answer to the question is that you can't hire a co-executor, but that doesn't mean that the executor can't hire some help.

The reason that an executor can't hire a "co-executor" is that the executor was chosen by the testator when the Will was made. Only those named in the Will can act as executors. An exception to this (there's always an exception, isn't there?) exists where a Will states that there always has to be a certain number of executors and if one dies or can't be an executor any more, the executors can name a replacement. This is relatively rare though.

If the reader who asked this question wants some help dealing with the estate, his best bet is to hire a trust company to act as his agent. This means that he is still the only executor and retains the rights and responsibilities of the executor, but there is someone else to do the leg work. In a situation like this, the trust company would take care of the sale of property, notifications, hiring a lawyer to apply for probate, pay the bills, arrange for tax returns to be done, etc. In other words, the trust company does everything that an executor would do, but the executor retains final say.

See my list of executor's duties here.

I've met a number of executors who want this kind of help because they are overwhelmed with the work it takes when they've already got a job and a family to take care of. Some executors want to delegate the work simply because the family situation is volatile and they want a neutral third party to take care of things.

Canada's major banks (Scotia, Royal, TD, BMO, CIBC, HSBC) have trust companies attached to them. You can get access to them either by finding their web page or by asking the staff in the branch where you bank to put you in touch with someone. You don't have to be a customer of a bank to use its trust company.

If the executor only wants help with certain tasks, he is entitled to hire professionals to help him. For example, he can hire a lawyer to apply for probate, a realtor to sell a house and an accountant to prepare tax returns. He might also hire a cleaning company to clean out a house, an auctioneer to sell household assets or a business broker to sell  a company. These days, most Wills specifically state that an executor can hire agents like this and pay them out of the estate, but this is permissible in any event.

Multiple agents under Personal Directive?

Today I met with a client and talked about who he would appoint as his decision-maker (called an "agent") under his Personal Directive. In my experience, when a person thinks about what traits or qualifications his or her agent should have, the emphasis is not on actual skills or experience; the person just wants someone who loves him or her and will act in his or her best interests. My client has three adult children and his first idea was to name all three of them as joint agents.

I am not really a fan of someone having all three (or more) of his children acting together. One of the main purposes of a Personal Directive is to put a person in charge of being the spokesperson and decision-maker. The chances of all three children agreeing on all aspects of their parent's health and medical care are very slim. The value of the document would be greatly diminished.

When I talk to parents in this situation, they often say that they want all of the children named because they don't want to leave anyone out and possibly by doing so hurt their feelings. I applaud the goal of retaining family harmony but I don't think the joint agent arrangement is going to achieve it.

This client also said that he wanted all of his children to have input into major decisions regarding his medical and personal care if his Personal Directive were to be in effect. We discussd it and eventually arrived at a decision that pleased him and that I think will be effective. The solution is for the client to name his oldest child as his agent, and to state in the document that his other children must be consulted by the agent on all major decisions.

This does not give the other children a veto power or any legal authority. It does ensure that they will have the chance to give input on decisions that will be important to them. It achieves the client's goals of having one spokesperson and of having all children involved without bogging down the process.

When you meet with an estate planning lawyer, always ask for ideas about different ways to do things, and talk about your own ideas to see if they are workable. You should leave the meeting feeling satisfied that the lawyer understood your goals and came up with applicable ideas.