Can an Executor Be a Beneficiary in a Will?

It’s perfectly legal for someone to be both an executor and a beneficiary of an estate.

This often happens — for instance, a husband might choose his wife to manage his estate and also leave everything to her.

Executor as a Beneficiary in a Will

You may choose to appoint an executor who is also a beneficiary of some or all of your estate. However, it is important to note that disputes can arise between an executor who is also a beneficiary and other beneficiaries. For instance, an executor with a personal interest in the estate may decide not to sell a property. In contrast, the other beneficiaries may prefer to sell the property and distribute the proceeds.

When appointing your executors, it is important to carefully consider who is best suited to take on the role and fulfil the responsibilities involved in managing your estate. Ideally, your executor(s) ought to be over the age of 18 years and be persons that you trust to carry out your wishes as set out in your Will.

Duties of Executors

Executors are legally required to comply with their duties and responsibilities under the provisions of the Succession Act 2023 (SA). The duties of an executor include:

Making arrangements for the deceased’s body. While this is often undertaken by a close family member, it remains the executor’s responsibility.
Applying for Probate or Letters of Administration, where required.
Identifying, collecting, securing, and insuring estate assets.
Ensuring estate assets are preserved and not wasted.
Continuing to manage any business of the deceased, where appropriate.
Identifying beneficiaries and any persons who may have a legal claim against the estate.
Paying the estate’s debts.
Administering the estate without undue delay.
Keeping accurate records and accounts.
Distributing the estate in accordance with the Will or, if there is no Will, under the laws of intestacy.

Who Can Be Your Executors?

An executor must be at least 18 years old and have legal capacity. It is common to appoint trusted individuals such as:

Close friends,
Family members, or
Professionals.

You may appoint more than one executor to act jointly. If you are considering appointing a professional service provider, such as a lawyer or accountant, it is important to discuss in advance whether any professional fees or charges will apply for acting in this role.

Am I an Executor or Beneficiary?

If you have been appointed as an executor and you are also a named beneficiary, it can become difficult to remain neutral, particularly if you are dealing with the competing interests and desires of other beneficiaries.

As an executor, your duties are very clear. In essence, any decision you make regarding the assets of the estate must be in the best interests of all beneficiaries. At times, this can be challenging, particularly in situations where that decision may not align with your personal desired outcomes.

When making decisions as an executor, it is important to be clear about the capacity in which you are acting. In more involved disputes, it is not uncommon for a party to have two solicitors – one representing them as executor and the other as a beneficiary.

How to Remove an Executor of a Will

In Australia, an executor can be removed if they fail to carry out their duties appropriately. This may include situations where the executor:

delays the administration of the estate,
acts in their own interests, or
breaches their legal obligations.

Upon application, if a Court finds that an executor/administrator has failed to perform their duties, it can make orders requiring the executor/administrator to:

pay funds to the estate,
compensate any person who has suffered a loss, or
any other order the Court deems appropriate as a result of the failure by the executor/administrator.