Can Joint Executors Act Independently?

When Can Joint Executors Act Independently?

When a Co-Executor Agrees to Have Power Reserved

Sometimes, a co-executor may elect to step back and refrain from being actively involved in the handling of the deceased’s estate. In such cases, one of the options available to them is having their power reserved. This means that the co-executor does not want to be named in the granting of probate. As such, it gives the remaining joint executor the freedom to act independently.

When a co-executor decides to have power reserved, they must receive a “Notice of Power Reserved” signed by the active executor involved in the planning of the estate. At this point, there is not much else that they need to do.

Nevertheless, having power reserved still reserves your right to apply for probate in the future. This means the active co-executor can only act alone for as long as their joint executor prefers to stand aside.

Should they wish to reverse this decision, they can apply for probate later to retain their full power as co-executors.

can co-executors act independently

Can co-executors operate separately? No, they can’t. When named as co-executors in a will, both individuals must act jointly. From probating the will to signing checks and transferring titles, all actions require mutual agreement. Essentially, one co-executor cannot make decisions or take actions without the consent of the other.

When a Co-Executor Renounces Probate

Another instance where a co-executor may be allowed to act alone is when their partner chooses to renounce probate. This is a much more final decision. When one of the executors decides to renounce probate, they effectively revoke their ability to step back in at a future date. Moreover, a co-executor can only renounce probate before they get involved with the estate’s administration.

A co-executor may act alone when the renouncing executor agrees to sign a “Deed of Renunciation,” which is a document that states their official renunciation with the estate’s administration. Should the renouncing executor decide to get probate, they will need to send the Deed of Renunciation and all the necessary grant application paperwork to the Probate Registry. As such, co-executors only renounce probate when they’re confident in their partner’s ability to handle the estate or are keen on staying clear of the entire process.

When a Co-Executor Loses (Mental) Capacity

If one of the joint executors cannot act because they lack mental capacity, the situation can devolve into many complications. However, it is not without a viable solution. Since they’re unable to renounce their position and cannot feasibly receive a “Notice of Power Reserved” from their co-executor, the active partner will have to explore the following avenues:

• They (the remaining co-executor) can rely on an ENDURING POWER OF ATTORNEY if it’s in place. Enduring or Lasting Power of Attorney gives them the authority to act on behalf of their co-executors.
• They must submit a medical certificate indicating their partner’s lack of capacity if they wish to attain probate. The surviving co-executor must present this certificate alongside a grant application to the Probate Registry. You can find this document labeled form PA14 on your government website.

After submitting these documents, a co-executor can legally act alone if their joint executor loses the capacity to manage the estate left by the deceased. Even if there is no Lasting Power of Attorney in place, the medical certificate may help them gain full authority over the execution of the estate. Nevertheless, Enduring Power of Attorney allows them to liaise with the registered attorney should the circumstances call for it.

When a Co-Executor Dies

If a co-executor dies before they can execute the deceased’s will, the surviving executor can act alone, provided they acquire a copy of their death certificate. If probate is required, this certificate must be attached to the grant application for submission to the Probate Registry. However, this step may not be necessary. If probate is not required, then the remaining executor can act alone so long as they acquire their deceased’s partner’s death certificate.

The remaining executor must then present a copy of the death certificate to the company in possession of the deceased’s assets. The company (or companies) involved reserve the right to grant access to the funds after verifying that the co-executor is legally permitted to act independently. Bear in mind that this is impossible without a copy of the deceased executor’s death certificate, which is used to verify that they no longer hold the position. It is a slightly less complicated process if probate is not necessary.

When a Co-Executor Cannot be Located

Every effort is made to track them down when an executor is missing. This responsibility is solely placed on the remaining executors or, if none are available, the beneficiaries. Searches for missing co-executors are conducted through the following mediums:

• Phonebooks
• Social media
• Private investigators
• Genealogist companies
• Friends and family

Even when probate is needed, the Court can sometimes allow the case to proceed if a co-executor cannot be tracked. In such cases, carrying on with the application is more appropriate without notifying the missing co-executor. For example, a court may rule in favor of a lone co-executor if it is deemed expensive and time-consuming to continue to locate their missing partner. However, this is only an option when an exhaustive search has been conducted, and even then, only if the situation is exceptional. For instance, the deceased may have had no contact with the co-executor before their demise.

Suppose probate is not needed to handle the deceased’s assets, including their estate, investment companies, and bank accounts. In that case, the remaining asset holders may sometimes insist on locating the missing co-executor before signing the closure form. It is not uncommon for asset holders to refuse to sign over funds until both co-executors signs the paperwork. Nevertheless, a co-executor can legally act alone if they agree to continue with the application.

When a Co-Executor is a Firm that has Ceased Trading

When the co-executor to the deceased’s will is a lawyer or a law firm that has ceased trading or practicing, the next step to be taken by the joint executor is verifying their status. This is accomplished by checking with the Solicitors Regulation Authority (SRA). This organization confirms whether the co-executor has indeed ceased all trading or has merely merged with another firm. Sometimes, it may only be a name change that causes confusion.

If a co-executor wants to act alone, it’s important to get written confirmation from the SRA on the status of the joint executor. This confirmation can be used as a part of the grant application by the acting executor when submitted to the Probate Registry. In scenarios whereby the co-executing firm has merely changed names or merged with another firm, they still hold the right to act as executors. Most wills allow the succeeding firm to take on the responsibility of the previous firm, so the co-executor cannot act alone unless the successor firm renounces its responsibility.

When is a Co-Executor Unable to Act?

Some situations bind the co-executor from taking any action regardless of the situation. One such circumstance is when the joint executor is below the age of 18 years.

When the Co-Executor is a Minor

Children and minors are not allowed to participate in estate execution until they are of legal age. Therefore, when the co-executor is a minor, the active joint executor may not act alone until they turn 18. In such cases, the active co-executor may even be denied an application for a grant of probate. However, they may still be allowed to apply, but until the minor turns 18, an individual co-executor can take no action. Moreover, you cannot send a notice of Power Reserved to a minor executor, so getting them to renounce their responsibility is impossible. If the co-executor has not attained the legal age, then the executors must first wait until they do before the process of applying for a grant can commence. When the minor executor turns 18, the co-executor must submit a new grant of probate if they wish to act on the estate will alone.

Bottom Line

Some situations allow one co-executor to act alone as long as the proper channels are followed. Seeking probate or renouncing the responsibilities of one joint executor requires that:

• The co-executor is alive
• The co-executor is mentally healthy
• The co-executor is available
• The co-executor is of legal age

If these conditions are not met, a co-executor may not legally act alone unless they follow the proper legal procedures. In need of an estate attorney? Call Hess-Verdon & Associates today at 949-706-7300.