Legal Clinic: Can an executor also be a beneficiary?

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Commonly, a direct relative is a beneficiary and the executor.

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What you need to know:

  • An executor of a will can also be a beneficiary. Such is not an uncommon situation.
  • No law prohibits a testator from making such a choice or selection.
  • Commonly, a direct relative is a beneficiary and the executor.

Can one be an executor and at the same time a beneficiary or, as I know, an executor will be another person? 


An executor of a will can also be a beneficiary. Such is not an uncommon situation. No law prohibits a testator from making such a choice or selection.

Commonly, a direct relative is a beneficiary and the executor. However, specific precautionary measures must be in place to safeguard the interests and rights of all beneficiaries identified when appointing an executor who is a beneficiary.

Therefore, it is essential that an understanding is drawn on the advantages and disadvantages of an executor-beneficiary.

It should be understood that an executor is a personal representative of the deceased under the will.

Such a person is appointed to distribute the property of a dead person according to the terms set out in the will.

Their role, known as representation, is given and protected by the law.

An executor must dispose of the property of someone who has died, in the manner the deceased would have, since they are guided by direct and strict wishes stated in the will. 
The probate process becomes easier when one can hasten to appoint an executor.

Probate is the formal legal process that recognises a will and appoints the executor who administers the estate and distributes assets to the intended beneficiaries. Since an executor who is a beneficiary may tend to act unjustly and act in their favour, specific considerations are key to reducing such chances. What to avoid may include; appointment of an executor to an estate that faces insolvency, meaning the presence of debts overriding the value of assets, and appointing an executor who is untrustworthy, dishonest and selfish.

There is every legal and social need to take preventive measures to safeguard the interest and rights of deserving beneficiaries of one’s estate, including selecting an executor who respects fairness and acts justly.

Remember, going by experience, money and property tend to increase greed in many of us. 
The role of the executor is to fulfil the wishes of the deceased, especially as it pertains to their property. His most significant task is to give individuals or groups the defined size according to the will. An executor is trusted to perform the deceased’s wishes and act in the deceased’s best interest.

The law grants the executor the power to do so and monitors and punishes the executor who acts contrary to the trust. Choice of executor is therefore

important. Executors are usually expressly appointed by the will. Section 6 of the Law of Succession Act provides that a testator appoint his executor or executors by will.

The appointment of executors is not a mandatory requirement, but in practice, a will is considered incomplete or poorly drafted if it omits to appoint executors.

Persons who are usually appointed executors include spouses, advocates, banks, friends and the Public Trustee.
Among spouses, a husband usually appoints his wife to be his executor and vice-versa, especially where they do not have grown-up children. This is preferable because, in most cases, the spouse is the residuary legatee, who receives the property not assigned to anyone. Where a spouse is appointed, it is advisable to appoint a co-executor, especially one of the grown-up children. 
Advocates may also be appointed as executors, but the testator is not obliged to appoint the advocate who drafts the will or keeps it in safe custody. Where an advocate is appointed as executor, the will should also provide his remuneration for acting. The relevant clause usually provides that the advocate will charge his professional fees on the estate. Advocates are normally appointed executors who are involved in the management of the estate, for example, where the advocate handles the legal affairs of the estates’ businesses or has been a family lawyer for the deceased.
Banks tend to the most suitable choices of all available possible executors, mainly where there is family strife. The appointment of a person within the family may lead to discontent. It may also happen where there is no other suitable individual at hand, for example, where a widow is making a will favouring her children who are minors. A bank is most ideal as an executor where the will creates trusts that are likely to continue for many years. The advantage of this is that the bank can remain executor for a longer period than a mortal executor who will need to be replaced eventually. Most banks have trustee departments whose sole responsibility is to manage the estates of persons who have appointed them executors. 
The Public Trustee is an office in the Attorney General’s chambers, designed to administer the estates of those persons who have appointed it to act as such or those who have failed to appoint anyone.

Public Trustee may become a beneficiary in the absence of known beneficiaries since such property among another mechanism, may be released to the Unclaimed Assets Financial Authority.