There is a general misconception that an executor of a will can’t be a beneficiary as well. Actually, that’s not the case at all. An executor can also be a beneficiary. However, there are some tasks they are not allowed to do, as well as some restrictions.
Let’s look in more detail at the role of a will executor who is also a beneficiary, and what they can and can’t do.
Executors and beneficiaries – what’s the difference?
Executors are the people you choose to administer your estate in accordance with your wishes when you die. In most cases, people choose one or two executors. In fact, you can choose up to four executors, but they must all act in unison, i.e. all decisions must be made jointly.
Again, most people choose a family member, close friend or someone who is a professional, such as a solicitor or accountant.
Beneficiaries are the people you choose to inherit your estate. Essentially, you can name whoever you want but most people name family, children, relatives, friends and charities. A beneficiary’s inheritance can be given in different formats, such as a specified amount of money, an item, a share of your estate after debts and other gifts have been paid, or as part of a trust.
An executor’s role
Being an executor of an estate is a time-consuming, demanding role and anyone you choose to be your executor should be asked in advance. This is to give them time to understand what will be asked of them and check whether they have the time and capabilities of carrying out the role upon your death. Due to the tax, legal and administrative work involved in being an executor – they can also be found personally liable should anything go wrong – it’s important the person you choose can be trusted and is able to take on the role.
The main duties of a will executor include:
- Liaising and corresponding with all involved with the estate of the deceased, including beneficiaries, debtors, service providers, banks and HMRC.
- Applying for Grant of Probate (if required) via the Probate Registry.
- Valuing the estate so that the amount of inheritance tax (IHT) due can be calculated.
- Submitting the relevant tax forms to HMRC and paying any IHT due.
- Settling any outstanding estate debts, such as service providers.
- Transferring or selling property, and any other assets if required.
- Distributing the estate to the named beneficiaries in accordance with the will.
If there is no-one you trust sufficiently to act as an executor of your will, or the person/people you choose turned down the responsibility (they are entitled to decline the position), the best option is to instruct a solicitor to act as an executor on your behalf. As a last resort, a public trustee – a government representative – will act as your will executor.
What is an executor not allowed to do?
A will executor’s role is to administer the estate of a deceased person and with that comes a level of responsibility. However, there are some actions they are not allowed to do.
Prior to receiving Grant of Probate, they are not allowed to:
- Start executing the will prior to the testator’s death.
- Sign the will on behalf of the testator.
- Administer the estate of the deceased prior to being officially appointed as an executor.
- Sell any property or assets not in accordance with the deceased’s wishes in the will.
When an executor has applied for Grant of Probate, they are not allowed to:
- Amend the details in a will.
- Remove other appointed executors – only a Court is entitled to do this.
- Add new executors to the will.
- Stop beneficiaries or other parties that have an interest in the estate from contesting the will.
- Refuse to liaise and communicate with the beneficiaries.
- Delay payments and estate distribution to beneficiaries without a legal or legitimate reason to do so.
- Steal assets or money from the estate.
- Sell assets at a lower price than market value without agreement from the beneficiaries.
- Make decisions without the agreement of the other executors, if there is more than one executor.
Naming an executor as a beneficiary
It is a common practice to name one of your beneficiaries as an executor as well, such as your immediate family or one of your children. However, it is always advisable to name a second executor who is not a beneficiary in order to provide balance on any joint decisions that may need to be made.
However, a will executor who is also a beneficiary is not allowed to act as witness to the testator’s will. They can only witness a will for someone if they are not a beneficiary.
Whilst executors of a will are entitled to claim a fee for their services from the estate, they are not allowed to take the entire estate unless they are the sole beneficiary. In some cases, this may happen if the sole beneficiary is the deceased’s spouse and is also named as a will executor.
On rare occasions, the family and beneficiaries of a deceased’s estate may have problems with the way an executor is handling the administration of the estate. For example, beneficiaries may believe that they are not distributing the estate quickly enough, or not at all. In the case of executor disputes, the best course of action is to try and resolve the matter by discussing it with the executor.
If this doesn’t resolve the matter, beneficiaries and family members are able to use mediation. In more serious situations, you are entitled to apply to the court to have the executor removed from the administration of the estate.
At Norfolk Will Writing, we have been helping our clients write their wills for over 20 years. We also help with trusts, living wills, inheritance tax planning, LPAs and probate. We offer a personalised service, keeping the process as simple and as easy as possible. Our experienced consultants are on hand to guide you through making your will as well as understanding and advising on the best way to manage your estate. Contact us for your free consultation and to book an appointment with one of our consultants to discuss writing your will today.