Avoiding Executor Conflict of Interest

Can you be an executor and beneficiary of a Will?

The short answer is yes. An executor can also be a beneficiary of a Will, and this is a common and perfectly legal scenario. However managing executor conflict of interest can be challenging.

In England and Wales, anyone over 18 (at the time of the deceased’s death) can be an executor. They can also benefit from the Will, provided they didn’t witness the Will when it was signed by the deceased.

An executor who is also a beneficiary doesn’t automatically have a conflict of interest because they are set to inherit a share of the estate under the Will.  However, it’s important to note that an executor who neglects their duties can be held personally responsible for any losses the beneficiaries suffer.

It’s crucial for an executor who is also a beneficiary to avoid conflicts of interest during the estate distribution. If this seems challenging, the executor can consider appointing a probate professional to oversee the estate’s administration.

An example of a conflict of interest could be if the Executor wishes to purchase property from the estate. 

To comply with the executor’s duties, they must still look out for the beneficiaries’ best interests and achieve the best price.

However, they would be conflicted between acquiring the property at the lowest price. 

Executors need to remember that they are expected to show the highest standards of conduct and are not permitted to benefit personally without authorisation from other stakeholders.

Avoiding Executor Conflict of Interest

Before taking any action, you should consider if you are acting in the best interests of the testator’s wishes and the interests of other executors and beneficiaries of the estate.

The following tips may help you avoid conflict of interest whilst acting as an executor:

• Communication: Regular, effective communication is crucial for clarity and to avoid conflicts and mistrust between other executors and beneficiaries. 
• Appoint a professional: Any executor can appoint a professional to deal with the estate and to lead communication with all parties involved.  This is a great way to keep impartiality between family members during a very difficult time.  The fees for appointing a professional and the insurance they require would be paid by the estate as a justifiable expense.  So, whilst a cost for the estate, this can give any lay executor or administrator peace of mind as the professional will help minimise any future liabilities.
• Executors could step aside: If an executor feels they have a conflict of interest, they could appoint a professional or renounce their position, leaving probate and estate administration tasks to other executors named in the Will.
• Ensure the grant of probate is jointly applied for: Most law firms recommend that all executors jointly apply for probate to ensure the application is not objected to by another executor. One executor can apply by themselves, subject to giving notice of the application to the other co-executors. Again, managing this risk comes down to clear, open communication and giving others time to object prior to the application being made.
• Removing an executor: If another executor has a conflict of interest, the other executors or beneficiaries can apply to the High Court to remove them under Section 50 of the Administration of Justice Act 1985.  The court can agree to the appointment of a substitute executor.  However, witness statements must be submitted to convince the court to use its powers. 
Check out our post ‘Can an Executor be Removed from a Will and How to Do It‘ for more information.

Arranging insurance to minimise third party claims and disputes with Beneficiaries

Lastly, don’t forget about arranging Insurance to protect those administering the estate and the beneficiary’s inheritance against claims from others who feel they should have benefited from the estate. 

Arranging the right Insurance can also protect those administering the estate from claims from the beneficiaries, such as if they have not arranged insurance at all or the estate is underinsured.  In either scenario, those administering the estate could be liable to the beneficiaries for any losses.  If you are also a beneficiary, the other beneficiaries could demand this money be repaid from your share (if you have enough to cover the loss).

So, protect yourself and the other stakeholders administering and/or benefiting from the estate with insurance. 

You can learn more about the cover available or buy a policy from the following pages:

• Executor Insurance Guide – useful for anyone administering an estate (with or without a Will) as it explains their liabilities and the insurance policies available to protect them.
• Probate House Insurance – insuring unoccupied property during probate correctly whilst minimising the risk of underinsurance.
• Land Insurance: Arrange liability insurance for any land owned by the deceased that is not within their main property boundary.
• Section 27 Insurance – protection from claims by unknown creditors of everyone administering the estate and the beneficiaries.
• Early Distribution Insurance – helps beneficiaries get their money quicker by distributing the estate early with insurance protection.  It also provides insurance for claims from unknown dependents after the statutory 6-month waiting period.
• Missing Will Insurance – whether there is a Will (testate) or no Will (intestate), this policy protects all people responsible for administering the estate from claims following the discovery of a newer Will that would have changed how the estate was distributed.  It also protects the beneficiaries from having to repay their inheritance.
• Missing Beneficiary Insurance –  Protection from claims from a beneficiary who was unknown when the estate was distributed.  Insurance can also be arranged where there is a known beneficiary that cannot be contacted.

Conclusion

Avoiding executor conflict of interest can be a complex but manageable situation. By prioritising clear communication, acting in the best interests of the estate, and considering professional guidance and insurance when needed, you can minimise conflict and ensure a smooth probate process.

Remember, if you have any doubts or concerns, consulting with a qualified solicitor specialising in estate administration is always the best course of action.

If you have any other questions on what is involved when acting as an executor visit our executor guide page.

Disclaimer: This article provides general information only and should not be construed as legal advice.  The laws regarding estate administration can vary depending on your jurisdiction.  If you are named as an executor in a will, it is important to consult with a qualified Solicitor in your area to ensure you understand your duties and obligations.