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It is normal and lawful for an executor to inherit from the same estate. A conflict of interest arises when a decision the executor makes for the estate would also benefit them personally — most clearly when they want to buy estate property, take a particular asset as part of their share, or be paid for their time. For a purchase, the self-dealing rule means the deal can be undone by any beneficiary, however fair the price, unless the will allows it, the beneficiaries gave fully informed consent, or the court approved it. An independent valuation helps, but on its own is not enough. This page describes England and Wales.
Most executors are also beneficiaries. A husband, wife or civil partner is often both the main executor and the main beneficiary; a son or daughter named as executor usually also inherits. This page explains when that dual role becomes a legal problem, what rules apply, and what other beneficiaries can do if they are worried. It describes the law of England and Wales.
The law does not stop a beneficiary being an executor, and the courts do not treat the combination as a reason to remove anyone. In Kershaw v Micklethwaite [2010] EWHC 506 (Ch), a son asked the High Court to remove the executors of his mother's estate, two of whom were his sisters, arguing among other things that the sisters had conflicts of interest because some properties might be transferred to them as part of their inheritance. Newey J noted that the sisters had not chosen to put themselves in a position of conflict but had been placed there by their mother, agreed that "there must often be a possibility of similar conflicts of interest where family members are executors", and held that the potential conflicts were not such as to require their removal.
What the law does require is that the executor carries out the role properly. Section 25 of the Administration of Estates Act 1925 puts a personal representative under a duty to "collect and get in the real and personal estate of the deceased and administer it according to law". An executor is also a fiduciary — someone who holds property for other people and must not put their own interest before theirs. The rules below are how the courts enforce that.
The clearest conflict is an executor who wants to buy something from the estate — the family home, a car, a business. On one side of the deal they are the seller, acting for the estate; on the other they are the buyer, acting for themselves.
Equity (the body of law developed by the courts rather than by statute) deals with this through the self-dealing rule. In Barnsley v Noble [2016] EWCA Civ 799, the Court of Appeal considered a transaction between the executors of an estate and one of those executors personally. The rule, as set out there, is that a transaction between a fiduciary acting in their fiduciary capacity and themselves in their personal capacity is "voidable by any beneficiary … however fair the transaction", and is in breach of the rule unless the fiduciary obtained fully informed consent. "Voidable" means it stands unless and until a beneficiary asks the court to set it aside.
The phrase that surprises people is "however fair the transaction". A good price and an honest executor are not a defence, because the rule is not about whether the price was right. It is about the executor not occupying both sides of the deal.
There are three recognised ways out:
An independent valuation and open marketing are useful — they are what informed consent is based on and what a court would want to see — but they are not a fourth way out on their own.
If the rule is broken, the transaction "will be liable to be rescinded (if that remedy is sought and remains available) and the trustee may be liable to pay equitable compensation" (Barnsley v Noble, para 29). In that case the executor escaped paying compensation because the will contained a clause excusing honest lay executors from liability for loss — but the court was clear that such a clause does not stop a beneficiary asking for the transaction itself to be undone.
A different situation is an executor who buys another beneficiary's own entitlement from them — for example, offering a sibling a lump sum for their share of the residue. That is governed by the fair-dealing rule, described in Barnsley v Noble (para 21) as "the well-recognised fair-dealing rule applicable where a trustee purchases the beneficial interest of his beneficiary". In Barnsley v Noble the trial judge treated the executor as owing a duty of "full and frank disclosure" analogous to the one that rule imposes — in plain terms, telling the beneficiary what the executor knows that bears on the value of what the beneficiary is giving up.
Sometimes an executor-beneficiary wants a particular asset — often the house — to count towards their share, rather than buying it. Section 41 of the Administration of Estates Act 1925 lets personal representatives "appropriate" estate assets towards a beneficiary's share, as seems to them "just and reasonable, according to the respective rights of the persons interested". It generally needs the consent of the beneficiary receiving the asset, and the personal representatives must have regard to the rights of others whose consent is not required (s.41(5)).
The value put on the asset is where the conflict lies: a low valuation benefits the executor who receives it at the expense of the others. In Kershaw, the judge drew exactly this distinction — a low probate valuation could not harm the other beneficiary "provided … that the valuation is not used in connection with the transfer of a property" to the executor-beneficiaries themselves.
A family member acting as executor is not automatically entitled to charge the estate for their time. Section 29 of the Trustee Act 2000, which section 35 applies to personal representatives, gives a right to reasonable remuneration only to a trust corporation, or to someone who "acts in a professional capacity" — and the latter only if each other executor has agreed in writing and they are not the sole executor. Otherwise, any right to be paid depends on what the will says. Out-of-pocket expenses are a separate matter. Our guide on whether an executor can charge for their time goes into this.
An executor who is also the main beneficiary may be tempted to distribute quickly, or to keep control of assets for longer than needed. Section 44 of the Administration of Estates Act 1925 says a personal representative "is not bound to distribute the estate of the deceased before the expiration of one year from the death" — the "executor's year". It protects the executor from being forced to pay out too early; it is not a deadline, and passing it does not by itself put the executor in breach. See our guide to the executor's year. Distributing before debts and tax are dealt with carries its own risk of personal liability.
Nothing in the law requires these steps in every case, but they are the ways conflicts are commonly dealt with in the open rather than argued about later:
If you are a beneficiary and think an executor's own interest is influencing the administration, the options — roughly in order of how far they go — are:
If the concern is not how the estate is being run but whether the will is valid — for example, a suspicion that the executor-beneficiary pressured the person who made it — that is a different claim; see our guides to contesting a will and undue influence.
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Related guides