Can the Executor of a Will be a Beneficiary?

If you are planning to update your will, then as well as considering who will benefit from your assets when you pass away, it is important to think about who to appoint as the executor or executors of your will. One of the questions we are often asked when we take instructions before drafting a will is “Can an executor of a will also be a beneficiary?” This article explores the important things you must consider if you are intending for the executor or executors of your will to benefit from your estate.

What is an executor of a will and what are their responsibilities?

Your will explains how your estate will be divided up and distributed to the people that you choose to be your beneficiaries. An executor of a will is a person chosen by the deceased to manage their estate when they have passed away. Being the executor of a will is an enormous responsibility as the executor must ensure that all legal requirements are met in order for all disbursements and notifications to be done properly and legally.

The role of an executor could involve selling or transferring property, investments and other assets and then distributing the money to beneficiaries after all debts are paid.

The role of executor requires flexibility, patience, organisational skills and understanding because the task requires dealing with a range of people such as banks, creditors and lawyers. Although it can be a complex and varied task to undertake, being appointed as an executor is an important responsibility that helps to facilitate the wishes of the person who has passed away.

Can the executor be a beneficiary of the will too, and if so, what are the implications?

While the role of executor of a will comes with responsibilities and demands time and communication skills, often the executor of a will is also a also a beneficiary of the estate. Sometimes, the testator (the person who made the will) consciously rewards the executor(s) as an acknowledgment of the work involved.

It stands to reason that if you are serving as both executor and beneficiary, conflicts can arise.  In order to manage the practical responsibilities resulting from the will requires unbiased decision-making processes. This lack of personal investment in outcomes, in favour of the express wishes of the testator and upholding the best interests of the beneficiaries, may be challenging to guarantee under these circumstances. It is important to  be transparent, honest and discuss any complexities with all parties concerned if there are likely to be situations where conflicts of interests may arise. You are also advised to seek legal assistance and advice before you progress to ensure you have suitable arrangements in place.

You may require a legal agreement to be put in place, to ensure peace of mind for everyone involved.

How can you change your will if you want to appoint a different executor or remove one altogether?

Making changes to your will, such as appointing a different executor or removing an existing executor altogether can seem, on the face of it ,to be a daunting task, but in fact, making amendments to your will is simple and straightforward.

Firstly, you can contact the lawyer who drafted your will, as they can provide advice about any obligations you may have and advise on the best way for you to update it. It may be necessary to redraft your will, or depending on your situation, it might be a simple process of signing a ‘Codicil’ form which amends the existing elements of your will. If your will was drafted at Anumis Legal, the process is likely to be efficient and quick. The last draft of your will will be held securely in our system and we can make the changes you require with ease.

Once you have received your updated draft will, you can review. When you are happy that your will reflects your wishes, you can make an appointment and we will print out your fresh will and will witness you signing your will. Remember, you must sign your will in front of two witnesses who, together, see you sign every page of your will.

Once the process is complete and your new will has been properly executed, your wishes will be legally binding, once you pass away. If you have taken advantage of our complimentary secure will storage option, your new will is returned to secure store, given a unique bar code and also logged on our Anumis Legal Will Register.

If there is no executor appointed or the executor is unable to fulfil their role, how would beneficiaries receive their inheritance?

If there is no executor appointed or the executor appointed in a will cannot, for some reason, fulfil their role, those people who have been left inheritances may face confusion and uncertainty – and a lengthy wait to receive their portion of the assets. In this eventually, it is recommended that the beneficiaries seek legal advice as a lawyer or estate manager can help guide beneficiaries through this complicated process.

When no formal executor has been appointed, or if the nominated executor is unable to act for any reason, the court can has jurisdiction to dismiss the role and appoint another.

You can instruct your chosen lawyer to carry out the duties of the executor, which means they would meet with all parties involved and administer the estate on your behalf according to the will of the deceased. Most importantly, your legal representative could lay out clear plans that are fair and just while considering potential complications that may arise.

What are some tips for choosing an executor for your will in Australia?

When you are seeking to appoint an executor or executors in your will, it is wise to give clear thought as to who might have the required skills and time to be an appropriate executor and trustee of your will.

The most important factor to consider when appointing an executor is trust. It is advisable to choose someone you trust implicitly to carry out your specified wishes and make sure those wishes are followed through on. Select someone who will start, engage with and complete the execution of your wishes in a diligent manner.

The executor must be reliable, organised and, ideally, legally aware, so it would be preferable to select someone with financial expertise or legal training. Choose someone who knows where to go for help – and someone who is willing to ask for assistance – if needed.

Think about the geographical location of your potential executors. It is best to have an executor, or executors, who live in the same Australian state that you do. If your executors are in another state, it may be more complex and costly for them to manage the logistical issues that are likely to come up.

If you would like tailored advice about your new will or you have any questions about the appointment of your executors, contact us at Anumis Legal. Our Wills & Estate Planning Lawyers are here to make the will drafting process easy, pleasant and understandable.  We are here to assist you with all of your estate planning needs, from your simple will to mirror wills or testamentary trusts to take care of your loved ones. For your complimentary chat or to book an appointment so that we can take your instructions for your up-to-date will, call Anumis Legal 07 5455 6347 or book your free chat , now.