Can Co-Trustees Act Independently? An Overview of Joint vs. Several Authority
Sharing trustee duties can feel complicated, especially when family members or a financial institution must work together. Decisions involving trust property can affect beneficiaries, investments, taxes, and family relationships.
At Commonwealth Life & Legacy Counsel, husband-and-wife attorneys Michael Winget-Hernandez and Lelia Winget-Hernandez help Central Virginia families create and administer trusts with clear decision-making rules.
This article explains when co-trustees may act independently, when they must work together, how Virginia law handles disagreements, and what each trustee should know about responsibility for another trustee’s actions.
The Default Rules: Joint Action vs. Independent Authority
Co-trustee authority starts with the trust document. Virginia law fills in the gaps when the document does not provide a different procedure.
How the Trust Document Controls Decision-Making
The trust instrument may explain whether one trustee may act alone or whether multiple trustees must approve a decision.
Common provisions may include:
- Independent authority for routine expenses, repairs, or administrative tasks
- Joint or majority approval for real estate sales, major investments, or beneficiary distributions
- Dollar limits on one trustee’s authority
- Written notice before certain actions
- Separate responsibility for investments, taxes, distributions, or recordkeeping
A trust may also permit one co-trustee to delegate a function to another. Virginia law allows delegation between co-trustees unless the trust expressly requires them to perform that function jointly. Va. Code § 64.2-756(E).
The trust should be reviewed before either trustee signs contracts, directs investments, distributes property, or represents that they have authority to act alone.
The Legal Default in Virginia
Under Va. Code § 64.2-756, co-trustees who cannot reach a unanimous decision may act by majority decision.
This rule has different practical effects depending on the number of trustees:
- With three trustees, two can form a majority.
- With four trustees, three would ordinarily be needed for a majority.
- With only two trustees, neither trustee can form a majority alone when they disagree.
A two-trustee arrangement can therefore reach a deadlock unless the trust permits one trustee to decide the issue, identifies a tie-breaker, or provides another method for resolving disagreements.
Virginia law also allows the remaining co-trustees to act when a vacancy occurs. If one trustee is temporarily unavailable because of absence, illness, legal disqualification, or another temporary incapacity, the remaining trustee or trustees may take prompt action when necessary to carry out the trust’s purposes or prevent harm to trust property. Va. Code § 64.2-756(B) and (D).
Financial institutions and title companies may still impose their own documentation or signature requirements. Those internal procedures do not change the trust or Virginia law, but they can affect how a transaction is completed.
Responsibility for Another Co-Trustee’s Actions
Serving with another trustee does not automatically make each co-trustee liable for every action taken by the other.
Under Virginia law, a trustee who does not join in another trustee’s action is generally not liable for that action. However, each co-trustee must exercise reasonable care to:
- Prevent another trustee from committing a serious breach of trust.
- Compel another trustee to correct a serious breach of trust.
A co-trustee therefore cannot always avoid responsibility by remaining uninvolved. If a trustee knows that another trustee is misusing trust property or committing a serious breach, the trustee may need to object and take reasonable corrective action.
A trustee who disagrees with a majority decision should document the dissent. Virginia law generally protects a dissenting trustee who joins in an action at the majority’s direction and gives notice of the dissent at or before the action. That protection does not apply when the action is a serious breach of trust. Va. Code § 64.2-756(H).
Protecting Yourself From Co-Trustee Liability
Active participation and clear records can help protect both the trust and the trustees.
Practical steps include:
- Review the complete trust and all amendments.
- Confirm which decisions require one signature, a majority, or unanimous approval.
- Review bank, brokerage, tax, and property records.
- Keep written records of significant decisions.
- Request supporting documents before approving a transaction or distribution.
- Document disagreements and proposed corrective action.
- Confirm any delegation of responsibility in writing.
- Respond promptly when another trustee may be committing a serious breach.
- Obtain tax, appraisal, investment, or legal assistance when appropriate.
Virginia law generally requires a co-trustee to participate in trustee functions unless the trustee is temporarily unavailable or has properly delegated the function. Va. Code § 64.2-756(C).
A trustee should not assume that allowing the other trustee to handle everything removes the duty to remain informed.
Pros and Cons of Appointing Co-Trustees
Whether co-trustees are appropriate depends on the people selected, the trust property, and the decision-making rules in the document.
Benefits of Shared Responsibility
Possible benefits include:
- Combining different skills and perspectives
- Dividing administrative responsibilities
- Providing additional oversight of investments and distributions
- Maintaining continuity if one trustee becomes temporarily unavailable
- Sharing the workload
- Combining professional knowledge with familiarity with the family
For example, one trustee may oversee investments and tax reporting while another handles beneficiary communication. Any division of responsibilities should be consistent with the trust and Virginia law.
Drawbacks and Potential for Conflict
Co-trustee arrangements may also create practical difficulties.
Potential concerns include:
- Delays when multiple signatures are required
- Deadlock between two trustees
- Different opinions about investments or distributions
- Unequal participation in trust administration
- Increased professional fees
- Unclear responsibility for records or tax filings
- Poor communication with beneficiaries
Virginia law requires a co-trustee to participate unless an exception or proper delegation applies. Informally assigning all responsibility to one person may therefore create risk for the trustee who remains uninvolved. Va. Code § 64.2-756(C).
The following table provides a general overview. The trust document controls, and financial institutions may impose additional procedural requirements.
| Action | Virginia Default if the Trust Is Silent | Common Practical Issue |
| Pay routine bills | Co-trustees act unanimously or, if they cannot agree, by majority | A bank may allow one authorized signer or require approval from multiple trustees |
| Sell real estate | A valid majority may authorize the decision | A title company may require signatures from all trustees holding record title |
| Open or close accounts | A valid majority may decide | The institution may require all trustees to complete its account documents |
| Change an investment adviser | A valid majority may decide | The custodian may request written consent or updated trustee certifications |
| Make discretionary distributions | A valid majority may decide, subject to the trust’s standards | Trustees may disagree about the beneficiary’s needs or required documentation |
| Delegate a trustee function | A trustee may delegate to a co-trustee unless joint performance is expressly required | The delegation should be documented clearly |
For a trust with only two co-trustees, a disagreement does not produce a majority. The trust should provide a practical method for addressing that possibility.
Resolving Disputes Between Co-Trustees
Even with a carefully drafted trust, disagreements may arise. A clear process can help protect the trust property and prevent a routine disagreement from becoming a larger conflict.
Common Areas of Disagreement
Co-trustees often disagree about:
- Investment strategy and risk
- Whether to retain or sell real estate
- The timing and amount of beneficiary distributions
- Trustee compensation
- Repairs and property expenses
- Tax decisions
- Hiring advisers
- Communication with beneficiaries
- Access to trust records
- Whether another trustee has breached a duty
Trustees must keep qualified beneficiaries reasonably informed about trust administration and material facts needed to protect their interests. They must also respond reasonably to requests for information concerning the trust. Va. Code § 64.2-775.
Clear records and consistent communication can reduce suspicion and help the trustees identify the actual issue in dispute.
Steps to Resolve Co-Trustee Conflicts
The trustees may consider the following sequence:
- Review the trust’s voting, delegation, and tie-breaking provisions.
- Determine whether immediate action is needed to protect trust property.
- Hold a meeting with relevant documents provided in advance.
- Record each trustee’s position and any written dissent.
- Obtain appropriate legal, tax, investment, or valuation advice.
- Consider mediation or another dispute-resolution process.
- Seek court instructions or other judicial relief if the trust cannot be administered effectively.
A Virginia court may remove a trustee when a serious breach has occurred or when a lack of cooperation among co-trustees substantially impairs administration of the trust. The court may also remove a trustee for unfitness, unwillingness, or persistent failure to administer the trust effectively. Va. Code § 64.2-759.
Clarifying Co-Trustee Authority
Co-trustees may act independently in some circumstances, but the answer depends on the trust’s terms and Virginia’s default rules. When the trust is silent, co-trustees generally act unanimously or by majority when unanimity cannot be reached. With only two trustees, a disagreement may create a deadlock because neither trustee holds a majority.
At Commonwealth Life and Legacy Counsel, we help families across Charlottesville, Fluvanna, Louisa, Goochland, Powhatan, and the Richmond area understand trust administration and fiduciary responsibilities.
Call our Zions Crossroad office at 434-589-2958 or our Powhatan office at 804-598-1348, email info@winget-hernandez.com, or reach out through our Contact Us page.
Disclaimer: This article is educational only and is not legal advice. Reading it does not create an attorney-client relationship.