Can a beneficiary be the executor of a Will?
When preparing a Will, you may wonder if it is appropriate to appoint your children as executors if they are also going to be beneficiaries of your estate…
In this article, we will cover:
- What is an executor of a Will?
- Can a beneficiary be the executor of a Will?
- What problems may arise if a beneficiary is also the executor?
- What are the duties of an executor of a Will?
- Who can be the executor of a Will?
- What happens if the executor of a Will is unavailable?
What is An Executor of A Will?
When someone dies, an executor is the appointed person responsible for administering the estate of the deceased according to the terms drafted in their will.
This mainly encompasses ensuring their debts are paid and that their assets and possessions are allocated to the people/entities expressed in their Will.
Can a Beneficiary Be The Executor of A Will?
Yes, it is common for an executor to also be a beneficiary in a Will. When it comes to ensuring that your kids are looked after, it is usually appropriate to appoint them as executors.
However, it’s important to note that difficulties may occur where only some of the beneficiaries are appointed as executors, which may lead to disputes between your family during the administration of your estate.
Owing to this, it is critical to consider your own family dynamic when drafting your Will, as well as nominating executors that are likely to carry out your wishes successfully.
What Problems May Arise if A Beneficiary is Also The Executor?
Whilst one may consider appointing a beneficiary as an executor to avoid paying legal fees, there is a certain level of risk that needs to be accounted for.
Family disagreements can occur when a family member believes they have not received adequate provision under a Will, which may lead to them contesting the Will and taking the matter to court.
It goes without saying that this has the potential of invoking irreparable damage to family relationships during an already challenging time.
For this very reason, if there is even a slight chance that a family dispute may occur, it is worth considering appointing an independent party, such as a solicitor, who will remain impartial during the entire process and help to deal with conflicts if they arise.
What Are The Duties of An Executor of A Will?
The role of an executor is to administer your estate exactly as you wish, so it is of the utmost importance that you nominate the right people for the job.
This can include the following, among many other responsibilities:
- Obtaining your death certificate;
- Locating your original Will and testamentary papers applying for probate;
- Paying any outstanding debts or expenses;
- Ensuring that your assets go to your desired beneficiaries, and;
- Defending challenges (if any) to your Will.
Who Can Be The Executor of A Will?
According to the law, anyone over the age of 18 years who is of sound mind is eligible to be appointed as your executor.
It is recommended to appoint multiple executors in your Will. This proves useful under the circumstances where an executor has passed away prior to an estate being administered, or when one of your executors is unavailable to take on their duties.
It is important to note that the appointment of an executor is not legally binding and anyone who is nominated does not need to take on the role of an executor.
To ensure the process runs smoothly, a solicitor can be appointed as one of the executors. If you’re appointed as the sole executor of an estate, it is still worth consulting a solicitor to ensure you understand everything that is required of you.
What Happens if The Executor of A Will is Unavailable?
It may happen that the nominated executor of a Will is unable, or unwilling, to perform their duties.
For this reason, it is recommended that you obtain agreement from your nominees before including their names in your Will.
When there is no reserve nominee named in the Will, certain other people can apply to the Supreme Court to be appointed administrator of the estate, even a creditor, so it is of the utmost importance to appoint multiple executors.
It may be worth considering appointing different executors to undertake different administrative functions.
For example, a family member may be best suited to handle intimate personal affairs such as the funeral arrangements, while a professional such as a solicitor can be appointed to handle the legal affairs of administering an estate and helping you apply for Grant of Probate.
Speak to Queensland Probate for more information on the entire Probate process, appointing an executor and for any other legal questions you may have.