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 — for many significant transactions, requiring all proving executors to participate can provide an additional layer of oversight;
• 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?

The position depends on who is actually named as executor in the Will and who has taken out (or been granted) probate. There is no "senior" executor and no casting vote among executors who have proved the Will — but that does not mean every act automatically requires all of them to sign.

Where a Will names two or more executors but probate is granted to only one or some of them, section 18 of the Administration and Probate Act 1958 (Vic) provides that the proving executor (or executors) may exercise all the powers conferred on a personal representative as effectively as if all the executors named in the Will had concurred. In other words, a non-proving named executor's lack of a grant does not, by itself, prevent the proving executor(s) from administering the estate.

Where two or more executors have proved the Will together, whether a particular act needs all of them depends on the nature of the transaction — see below. Each proving executor 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, and an executor who knowingly participates in, or acquiesces to, a co-executor's breach of duty may be called to account for that involvement — but this is not an automatic rule that every unilateral act of one executor exposes the other to liability.

In practice, 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 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?

There is no single answer — it depends on the transaction, the terms of the Will and, at times, the requirements of the third party involved. For dealings with land and many formal or institutional transactions, title instruments generally require all proving executors to join in and sign. As a matter of institutional practice, banks, Land Use Victoria, share registries, the ATO and superannuation trustees will often require every proving executor to participate before they will act, but that reflects their own operational requirements rather than a single universal rule of law applicable to every transaction.

For some acts concerning personal estate, or ordinary steps in administration, it may be open to one proving executor to act alone and for that act to be effective — but whether that is so depends on the specific power being exercised, the terms of the Will and the nature of the transaction. Co-executors should check the specific act in question, rather than assume either that unanimous joint action is always required or that any one of them can always act independently.

Regardless of the answer for a particular transaction, all proving executors owe fiduciary duties to the estate and may be held to account for their own participation or acquiescence in a breach of duty. An executor who refuses to engage in the administration at all can effectively hold matters up; 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?

Often, yes, although there is no guaranteed outcome. The Supreme Court is generally treated as a last resort rather than a first option. Steps that can help resolve a dispute between co-executors include:

• 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
• Discharge and removal of an executor — under section 34(1)(c) of the Administration and Probate Act 1958 (Vic), where an executor desires to be discharged, refuses to act, or is found unfit or incapable of acting, the Court may discharge or remove them and appoint another proper person in their place.

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. Section 34(1)(c) of the Administration and Probate Act 1958 (Vic) allows the Supreme Court of Victoria to discharge or remove an executor — including one who desires to be discharged, refuses to act, or is found unfit or incapable of continuing to act — and to appoint another proper person in their place. Removal is a serious step and mere disagreement between co-executors is not, on its own, sufficient. The Court focuses on the due administration of the estate, including whether the executor's conduct, capacity or the breakdown in the joint administration is causing real prejudice to the estate and the beneficiaries.

A named executor who has not yet applied for probate, or "intermeddled" in the estate, may instead choose to renounce their appointment. Once probate has been granted, or an executor has begun actively administering the estate, renunciation is generally no longer available and an application to the Court for discharge or removal will usually be required instead.

Common situations in which removal may be considered include sustained refusal to engage in the administration, persistent breach of duty, dishonesty, incapacity, or a breakdown in the joint administration that is genuinely prejudicing the estate. 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 an option that can be faster, cheaper and less damaging than litigation, though it does not guarantee resolution.
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.

Many deadlocks are worked through without reaching the Supreme Court. Clear communication, joint advice and, where needed, mediation can help break an impasse, although none of these steps guarantees a resolution. Where they do not, the Court's supervisory jurisdiction is available to give directions, approve a course of action or, under section 34 of the Administration and Probate Act 1958 (Vic), discharge or remove an executor in an appropriate case. Early advice from an experienced estate administration lawyer can help keep an administration on track.

Frequently Asked Questions