Can an Executor of a Will Also Be a Beneficiary?

By Lee Hall, J.D.

Can an Executor of a Will Also Be a Beneficiary?

By Lee Hall, J.D.

A beneficiary is a person named in a person's last will as a recipient of certain assets. An executor is the person authorized to act on the estate's behalf, to sell any property that is not devised to anyone, and ultimately to distribute proceeds from asset sales to the beneficiaries. A beneficiary of a will can also carry out the role of executor.

Pen and glasses sitting on Last Will and Testament

The testator, or maker of a will, is wise to name a trusted and willing family member or close friend as an executor. Often, that person will also benefit from the will. Some wills name only one person, such as the surviving spouse, as beneficiary. In such cases, it's especially likely that the beneficiary will serve as the executor.

Complexity and Costs

For large estates with complex assets, a testator might select a bank or lawyer as the executor. Large estates can come with great potential for conflicts among the beneficiaries, so naming a disinterested executor makes sense. Also, resolving a complex estate might entail running a temporary business that requires an institutional fiduciary with access to legal, tax, and investment expertise.

The outside executor, while not a beneficiary to the will, does receive compensation (payment for services) from the estate.

When the estate is modest and the chance of a contested will is small, a testator can sensibly select a relative or friend who will waive the executor's fee, which would otherwise come out of the estate. A spouse or grown child will have an interest in getting the will through the probate process without any hitches.

Conflicts Between the Executor and Beneficiaries

Although the executor need not seek investment opportunities to try to increase the assets during the probate period, the executor must conserve the estate's value through the settlement period.

What happens if multiple beneficiaries exist and a conflict develops between the executor and a beneficiary on how to conserve or distribute some assets? Worse yet, what happens if the executor takes money improperly?

 

Depending on the nature of the problems caused by an executor's action or lack of action, there are numerous remedies available.

For example, beneficiaries or creditors may ask the probate court to demand an accounting. Upon finding misconduct, the probate court can hold the executor in contempt or simply revoke the executor's authority and access to assets. Beneficiaries may also bring a civil action against the executor.

Some Final Words on Choosing an Executor

Whether or not the executor is a beneficiary of the will, a testator should choose a representative who is honest, stable, and financially responsible. Moreover, a prudent testator names a successor to the executor in case the first selection does not work out.

When it comes to choosing an executor, it's sensible to keep in mind that any situation involving goods and money carries the potential for conflict. The testator cannot foresee every possible conflict that might occur when his or her will enters probate. Yet, in most cases, an executor who is also a beneficiary will want the estate settled promptly and without conflict.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.