Contingent vs. Co-Executors: What You Need to Know

Contingent executors and co-executors. Dave loves one, the other not so much.

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 What’s a contingent executor? What’s a co-executor? And what do you need to know about them? What dark mysteries lurk behind them? Not really. Let’s start with a quick refresher: What’s an executor? An executor is the person or people or trust company named in a will to carry out the final wishes of the deceased, and of course, manage the settlement of the estate.

So what is a contingent executor? You guessed it — it’s a backup executor. It’s someone who steps in if and only if your primary executor can’t or won’t serve. But here’s the key point: That happens a lot more than you think! Name a contingent executor in your will. No downside here. If you don’t, hey, that could cause stress and court delays for your family.

Now, what is a co-executor? Yes, somewhat obvious, but please stick with me here — I have quite strong opinions on this subject. A co-executor is one of two or more people named in a will to jointly manage the estate after someone dies. Now a key question, can co-executors act independently? Usually, no. Unless the will says otherwise,

Canadian law assumes that co-executors must act jointly. That means: They must agree in all major decisions and they often need to both sign all legal and financial documents. Do you see where I’m going here? If co-executors can’t agree often nothing moves forward until they do. Oh yeah, but Dave, do you really think two siblings could ever disagree during a time of great emotion?

Hello? Delays, disputes, court applications. Be careful here. I can’t tell you how many times I’ve seen this go off the rails. Even if a full gridlock doesn’t happen, often one of the co-executors moves at a much slower pace than the other. Frustration and resentment set in. Co-executors sound good in theory, and often appear to be right family politics wise.

But, to be honest, I prefer naming one primary executor. If you insist on naming two or more, make sure they have a solid relationship and tend to have similar values. It’s tricky. Also consider having your lawyer include language in your will, like “In the event of a dispute, such and such has final decision making authority.”

Wow, when you look at all this, it really reminds me how much easier it is to take my dad’s approach — never, ever die.