Co-Executors Cannot Agree: What Happens in Victoria?

What Are Co-Executors?

Co-executors are two or more people appointed by a Will to administer the deceased's estate together. Will-makers often appoint co-executors for sensible reasons:

• Shared responsibility — administering a deceased estate is a substantial undertaking, and appointing two or more executors spreads the workload;
• Checks and balances — joint authority means that one executor cannot act alone in a way that affects all beneficiaries;
• Continuity — if one executor dies, becomes incapacitated or renounces, the remaining executor can usually continue; and
• Family balance — appointing children from different relationships, or one professional and one family member, can help families feel that no single person has unchecked control.

The trade-off is that joint authority only works while the co-executors can work together. Where the relationship breaks down, the very same safeguards that were intended to protect the estate can become the source of significant delay. Before accepting appointment, every co-executor should understand the scope of the role — our guide to executor duties sets out what is expected of executors in Victoria.

Do Co-Executors Have Equal Authority?

Yes. Co-executors hold the office jointly and, as a general rule, must act unanimously. There is no "senior" executor and no casting vote. The estate's assets are vested in the executors together, and decisions affecting the estate must be made together.

Each executor also owes the same fiduciary duties to the estate and the beneficiaries — to act honestly, with reasonable care and skill, and in the best interests of the beneficiaries as a whole. Those duties are personal: one executor cannot simply delegate their judgement to a co-executor or wash their hands of decisions they disagree with. If a co-executor stands by while the other acts improperly, both can be exposed to personal liability.

In practice this means co-executors should agree, at the outset, how they will communicate, how decisions will be recorded and what advice they will share. Putting that structure in place early dramatically reduces the risk of later dispute.

Common Areas of Disagreement

Most disputes between co-executors are not about personalities — they are about decisions where reasonable people can genuinely disagree. The most common include:

• Sale of real estate — whether to sell a family home, the timing of sale, the choice of agent, the listing price and how to deal with occupants;
• Timing of distributions — whether to make interim distributions or wait until the administration is complete and all potential claims have passed;
• Investment decisions — how to hold estate funds during the administration, whether to retain or liquidate investments, and how to deal with business or shareholding interests;
• Estate administration strategy — whether to administer informally where possible, apply for probate, defend or settle a claim, or enter into a deed of family arrangement;
• Engagement of lawyers and accountants — which professional advisers to engage, the scope of their retainer and the level of fees the estate should bear; and
• Executor commission — whether one or more executors should claim commission for their work, and on what basis, as discussed in our guide to executor commission.

None of these issues are unusual. What tends to turn a difference of view into a dispute is the absence of a clear process — no agreed agenda, no shared advice and no record of decisions taken.

Can One Executor Act Without the Other?

As a general rule, no. Where the Will appoints joint executors, joint action is required for anything of substance. Banks, Land Use Victoria, share registries, the ATO and superannuation trustees will all typically insist that every executor sign before they will act.

There are limited exceptions for routine, day-to-day matters — for example, one executor opening correspondence, collecting mail or making a single telephone call to obtain information. But anything that disposes of estate property, commits estate funds or binds the estate legally will almost always require all executors to participate.

That has two important consequences. First, an executor cannot solve a deadlock simply by going ahead alone — doing so risks personal liability and may be reversed. Second, an executor who refuses to engage at all can effectively hold the administration hostage. Where that happens, the position overlaps with our guide on an executor refusing to act.

What Happens When Co-Executors Reach Deadlock?

Deadlock between co-executors has very real consequences for the estate. Common practical effects include:

• Delay in obtaining probate — where the executors cannot agree on the application itself or the choice of solicitor;
• Frozen assets — banks will not release funds, real estate cannot be sold or transferred, and shares cannot be dealt with;
• Loss of value — property left vacant and uninsured, investments left in cash during rising markets, or business interests left without direction;
• Tax and compliance issues — missed lodgement deadlines, accruing interest and penalties, and unresolved capital gains issues;
• Stress on beneficiaries — particularly those who depend on the estate for housing, support or business continuity; and
• Escalating legal costs — which ultimately reduce what beneficiaries receive.

The longer the deadlock continues, the more difficult it becomes to resolve. Positions harden, costs grow and the estate itself can suffer real financial damage. That is why early intervention — usually short of court — is so important.

Can Disputes Be Resolved Without Going to Court?

In the great majority of cases, yes. The Supreme Court is a last resort, not a first option. The steps that most often resolve a dispute between co-executors are simple but disciplined:

• Clear communication — a structured meeting, with a written agenda and minutes, dealing with each issue in turn rather than allowing disagreements to accumulate;
• Independent advice — joint instructions to a single solicitor and, where appropriate, a single accountant, so both executors are working from the same advice rather than competing opinions;
• Mediation — a confidential, without prejudice process with a neutral mediator, which is especially useful where the dispute has a family or emotional dimension; and
• Professional assistance — engaging an experienced estate solicitor to chair meetings, keep the administration on track and act as the "honest broker" between co-executors and beneficiaries.

Where the disagreement is really between branches of the family rather than the executors themselves, a deeds of family arrangement can sometimes restructure the distribution in a way that removes the source of the dispute. That is a powerful tool, but it has tax, duty and capital gains implications and should not be entered into without advice.

When Might the Court Become Involved?

The Supreme Court of Victoria has a long-standing supervisory jurisdiction over executors and trustees. That jurisdiction can be invoked in several ways:

• Directions — the Court can be asked to give directions on a specific question, such as whether to sell a particular asset or accept a particular offer, protecting the executors who act on the direction;
• Approval of a course of action — including approval of a proposed compromise or distribution where the executors are at odds;
• Accounts and inquiries — orders requiring the executors to file estate accounts and answer specific questions about the administration; and
• Removal and replacement of an executor — where it is necessary for the proper administration of the estate.

Court applications are expensive, slow and public. They are sometimes unavoidable — particularly where one executor is acting in serious breach of duty or where the deadlock is causing real prejudice — but they should be a measured response, not a first reaction.

Can One Co-Executor Be Removed?

Yes, in appropriate circumstances. The Supreme Court of Victoria has the power to remove an executor and, if necessary, appoint a replacement. Removal is a serious step and is not granted simply because two executors disagree. The Court will look at whether the executor's conduct, capacity or relationship with the co-executor is causing real prejudice to the estate and the beneficiaries, and whether removal is necessary for the proper administration of the estate.

Common situations in which removal may be considered include sustained refusal to engage in the administration, persistent breach of duty, dishonesty, incapacity, or an irretrievable breakdown in the joint administration that cannot be resolved by any other means. Our guide on removing an executor sets out the principles and the process in detail.

Practical Tips for Co-Executors

Co-executors who want to avoid deadlock — and protect themselves personally — can do a great deal at the outset of the administration. A simple checklist:

1. Meet early — sit down together at the start of the administration and agree how you will communicate, how often, and how decisions will be recorded.
2. Use one set of advisers — engage a single solicitor and, where needed, a single accountant jointly, so both executors are working from the same advice.
3. Keep written records — record decisions, advice received and reasons for each significant step in the administration.
4. Communicate with beneficiaries — keep beneficiaries reasonably informed about progress; surprise is the enemy of trust.
5. Address issues early — raise concerns directly with your co-executor and your solicitor as soon as they arise, rather than letting them build.
6. Consider mediation before court — if a genuine impasse develops, mediation is usually faster, cheaper and less damaging than litigation.
7. Obtain advice before acting alone — never sign anything significant, distribute funds or commit the estate without confirming you have proper authority to do so.

Conclusion

Co-executors in Victoria share authority and share responsibility. That arrangement works extremely well when executors approach the role with goodwill, a clear process and consistent advice. When they cannot agree, the administration of the estate can stall — and the cost of that delay falls on the beneficiaries.

Most deadlocks are resolved without ever reaching the Supreme Court. Clear communication, joint advice and, where needed, mediation will usually break the impasse. Where they do not, the Court's supervisory jurisdiction is available to give directions, approve a course of action or, in serious cases, remove a co-executor. Early advice from an experienced estate administration lawyer is almost always the cheapest way to keep an administration on track.

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