Appointing Co-Executors in Texas

Posted by David Armstrong | Jul 15, 2022 | 0 Comments

Appointing Co-Executors, Co-Guardians, Co-Trustees in a Texas Will  

I often see clients wanting to appoint more than one person to fiduciary positions in a will, i.e. executor, guardian, trustee.   This may be done so that an adult child's feelings are not hurt, because their brother/sister was selected and not them, as to the executor, or in the case of guardian or trustee, more often a different family member that they just don't want to leave out. 

It is usually my counsel, that appointing Co-fiduciaries of these types may not be the best choice, and is more likely to end up more difficult for the person(s) you appoint. 

Executors: If you choose to appoint Co-Executors, you have now given two people the requirement that they agree on everything related to your will, which includes:   when the will should be probated—immediately or waiting for time to gather information first, time to grieve, etc…?  what attorney to use for representation?   How to sell/what to sell/when to sell?   Having two people both show for a hearing, etc…   And if they can't agree, this could easily end up back in a judge's hands to force out one of them, or end up with another person to be executor.   All in all, the job of executor is one that is better handled, in my opinion, by one person, but with an alternate named in your will.

Guardians: The law does not allow for there to be more than one guardian of both person and estate, except in limited circumstances.   (See Texas Estate Code 1104.001--the law does allow for a husband and wife or joint managing conservators to be appointed as joint guardians)   However, also note that one person can be appointed as guardian of the estate and a different person as guardian of the person of your minor child.   I would suggest always that the people who are involved in those positions are already familiar with the other person named, or if not, that they work well with others, and most importantly, they will have the best interests of your minor children always foremost in mind. 

Trustee:  Naming more than one person as trustee may be workable, but more care would be needed to draft the trust instrument.  If you choose to have co-trustees, without further instruction, you have set up the two appointed people to be required to agree on all aspects of that trust.  Where is the money invested, what is a legitimate expense, when and how much to disburse?   Many of these types of questions can be addressed in a trust, but if they are not dealt with specifically, you can end up with a trust that cannot take care of its designated beneficiary. 

The one issue that comes up in which having a second person involved is most needed/appropriate is when there is not the level of trust in that one person.   My client may be concerned that the person they have chosen is not sufficiently trustworthy to do the job for the benefit of their estate and more importantly for their beneficiaries.   This may be true—but if so—we need to look for another person to do the job.   Don't put a non-trustworthy person in any of these positions.  

Reviewing these roles with your attorney is necessary as part of making a will that carries out your wishes, but even more is easily operational when it is put into place (especially when those wishes include how to care for minor beneficiaries)

About the Author

David Armstrong

J.D. University of Houston, 1995


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