I understand why someone would want co-executors, co-trustees, co-attorneys-in-fact, etc. Maybe it’s because they’re afraid of having too much power in one person’s hand. Maybe it’s because they don’t want to offend a friend, child, or relative. Maybe it’s because it may just be easier to have a few people with that power in case the other is indisposed. I get it. But, going in, they should also know it’s a recipe for litigation.
Co-fiduciaries often have to work unanimously – either by statute or by the underlying instrument. Lack of unanimity leads to lawsuits. Moreover, when, for example, one attorney-in-fact lives in the same state as the principal, the co-attorney-in-fact residing in another state may be cut out of the process. Whether perceived or actual shenanigans exist, litigation may result.
In Rosenkrantz v. Feit, a Florida Court of Appeals considered whether one attorney-in-fact could pursue a lawsuit against her co-attorney-in-fact. The trial court had dismissed the case on the grounds that the attorney-in-fact filing the suit had failed to state a claim against her co-attorney-in-fact. The appellate court, however, disagreed. (more…)