Can an executor of a will be a beneficiary is a very common question we get. The short answer is yes, in Queensland provided the person is over 18 anyone can be an executor of your will including a family member, a friend, a professional body executor, an accountant or a solicitor. The better question is should an executor of a will be a beneficiary which is what we will discuss below:
Are the executor and beneficiary the same person?
We should start off by clarifying that the executor and the beneficiary are not the same person. Well, they can be but they do not share the same role. The executor is the person or people who administer your estate after you die. The beneficiary is the person or people who benefit under your will or inherits your estate after your die. They are two separate roles. However, an executor can also be a beneficiary under a will in Queensland. There is no law suggesting that an executor can’t also be a beneficiary of an estate.
Should an executor of a will also be a beneficiary?
There is no reason why the executor of a will also needs to be a beneficiary in fact, there is more reason not to select one of your beneficiaries as the executor of your estate. Here is a case example of the shortfalls of having an executor also as a beneficiary.
Case Example: Alex Boulton has 5 children who he loves equally and all shared equal importance in his life. He elects his eldest two children as executors of his estate. Upon his passing, 2 of his children, Bob and Sarah are in dispute over who should inherit an oil painting that belonged to Alex, their father. Bob an executor of his estate but Sarah is not. Although Alex intends for his children to inherit equally, as Bob has been made the executor of the estate and is in charge of distributing the assets, he has more power and in an unequal bargaining position to Sarah. As he is also a beneficiary of the estate, his mind is clouded by his own wants and needs rather than a fair and equal distribution of his father’s estate, as per his wishes.
In the above case example, Sarah is not without recourse. She is within her rights to contact a solicitor to advocate for her and potentially remove Bob as the executor if he is acting unfairly or unreasonably in the administration of the estate. This however, is an unnecessary drain of resources of the estate and legal fees is not where Alex intended his life savings to go.
In the above scenario, Alex could have avoided a dispute on his estate by making someone other than his children executors. Alex could have alternatively elected two unbiased friends or a professional body as the executors of his estate. The downside to electing professional bodies as executors as it will incur more fees on the estate than if the beneficiaries got along and everything went smoothly. This is because the body such as a solicitor will charge for their time to administer your estate as a professional.
If you wish to make your beneficiaries also your executors consider the likelihood of their cooperation after your death.
Can an executor benefit from a will?
What many people are not aware when drafting a will is that there is provision in wills for executors to benefit from the estate which is something to consider when deciding who to make as the executor. This provision is known as an executor’s commission and is in place to compensate the executor for the trouble they have gone to in administering your estate.
While this may seem unfair, the executor is responsible for completely administering your affairs after you die including completely organising the funeral, dealing with government bodies and applying for probate which can be a very time consuming experience. While many executors choose to forgo the executor’s commission, this is not always the case and can not be expected when selecting a person.
Who can be an executor of a will in Australia?
Anyone over the age of 18 of sound and able mind, regardless of whether they are related to you and regardless of whether they are a beneficiary or not can be an executor. This could be anyone from a family member, friend to a professional body like an accountant or lawyer.
When drafting a will it is always best to seek legal advice rather than preparing a will kit online. A poorly drafted online will can cost your beneficiaries thousands in will disputes after your death which can be avoided with careful drafting by a qualified lawyer.
If you need help drafting a will or contesting a will in Australia, our friendly wills and estates lawyers are more than happy to help. Call our office on 3073 2405.
