Can an executor of a will also be a beneficiary?

Written by judy brown
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Can an executor of a will also be a beneficiary?
Executors carry out the wishes expressed in a will (Comstock/Comstock/Getty Images)

When you make a will, you name one or more executors to be responsible for carrying out the wishes you express in it. Beneficiaries are the people you choose to leave your estate (possessions) to after you die. Your executor and beneficiary can be the same person, and you can leave them as much as you want. In legal terms, there is no problem with this arrangement. However, family circumstances can sometimes make it difficult to handle.

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Legal position

You can be both an executor and a beneficiary, provided the will names you in both capacities. What you must not do is witness the will. A bequest in a will is not valid if the beneficiary (or their spouse) has signed their name as witness. An executor who is also a beneficiary has a dual role. Your primary duty is as executor: you are there to deal with the estate according to the law, and your priority must be to act in the estate's interests before your own interests.

The executor's role

An executor’s three main aims are to identify all the assets of the estate and assess their value; to identify debts and pay them; and to share out the assets in the way the decedent (the person who died) wanted. This involves particular legal and administrative duties. The legal duties are to apply for a grant of probate (called “confirmation” in Scotland) to prove you have the authority to administer the will; and to deal with legal claims against the estate. Administrative duties include getting the death certificate; arranging the funeral; and making an inventory of all the possessions and debts accumulated by the person who died. You must pay the bills and taxes, and prepare accounts. Finally you distribute the legacies and the rest of the estate to all the beneficiaries.

Where problems can arise

Dissension or conflicts of interest may arise if you are one of several beneficiaries as well as an executor; or if the main asset is a business and you are the business partner; or if you don’t get on well with the other beneficiaries or family members. They may suspect you of acting unfairly or incompetently, or may dispute the terms of the will. Disputes are more likely where the decedent had married more than once, leaving two or more sets of children or stepchildren, and the emotions surrounding bereavement often make them worse.

Solving problems

If you find your job as executor burdensome, you can hire professional help from, for example, a solicitor or accountant, and pay for it out of the estate. You can renounce your executorship before you start if you feel the job will be too complex, or if family disputes will make it too difficult, as long as you do so before applying for probate. The other executors or next of kin will then take over. In a dispute, professional advice from a solicitor can help sort out the rights, wrongs and legalities, but extreme cases may end up in court.

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