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Does a co-executor of a living trust have the same equal say within the trust as the executor?

Warren, MI |

My brother is listed as executor of my fathers living trust. My father passed away and my sister is also listed as co-executor. Does she have the same equal say in how things are distributed regarding my fathers living trust? Also, will she be required to sign off on any deeds to properties if they are sold?

Attorney Answers 5


You are confusing terms here. For trusts you need to use the term co-trustees. Assuming they are co-trustees, then they have equal say and both must agree to any action involving trust assets. If they can not agree, a court order may be needed to break the log-jam.

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Your brother and sister are "co-trustees", that is the correct term under Michigan law. Some trusts allow one trustee to act alone, so I would need to look at the trust before answering your main question. Neither co-trustee will have a right to determine "how things are distributed" -- your father already set forth in his trust who gets what (for example, all children equally). The co-trustees' duty is to gather the assets and distribute them according to your father's wishes. Sometimes one co-trustee is a controlling person and tries to take over without input from the co-trustee. I usually attempt a "family meeting" first, and then if necessary you can open up a trust administration in probate court so that your father's wishes are carried out. Good luck.

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I would agree with the other two responses. I would add only that if you are truly referring to "co-executors" or "Co-Personal Representatives", these persons only act under a Will, by way of a probate proceeding. Most trusts are set up with the intent to avoid probate. It is possible that the Will names two Co-Executors and the Trust names only one Successor Trustee. It is also possible that your brother is listed as the First Successor Trustee and your sister is listed as an alternate, in the event your brother cannot act or continue.

If you have a copy of the Trust Agreement, then you should review it carefully to determine whether things are as you believe them to be.

Best of luck to you!

James Frederick

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You have asked a good question! Usually, people listed as co-executor DO have equal say. However, it might be that either one alone has authority to make decisions, or it might be that both have to sign off on any decisions.

They key to answering your question is in the living trust document (or the will). The best thing to do is get a copy of the trust, if you can, and see what it says about who is in charge and how they are in charge. A well-drafted living trust will have a table of contents and page numbers. It will include language that says something like, "If co-trustees are serving, then ..." The document will probably answer your question.

An experienced estate planning attorney would be able to advise your sister on her rights as co-executor and it may even be permissible and proper to use trust funds to pay the legal fee.

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I will not reiterate the wise advice given by my colleagues. I will simply add that you not only want to look at the trust agreement itself, but you should determine through due diligence whether or not the trust actually owned anything. Many times trusts are setup and no further steps are taken. If the trust is not "funded" properly (the process of making the trust an owner of an account or property or naming it as beneficiary), then probate will be necessary in some form.

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