One of the problems people face when looking for a quality probate solicitor is that they can find that their hands are apparently tied, as the firm who drafted the deceased’s will has been appointed as an executor – or a bank or other institution. That leaves two problems: firstly the solicitor appointed executor may wish to insist their own firm handles the probate and secondly the bank appointed executor will charge to act as executor (and vice-versa).
But the professional executor’s firm may not offer the best value service. They may not be specialist probate solicitors or offer the most efficient probate service. The bank’s charges for probate may not have been fully explained to the deceased when they made the will. The professional executor’s fees may have risen.
So what can you do when a solicitor has been appointed executor and you want to stop the solicitor acting as executor? Can you stop the bank acting as executor?
The first thing you should consider is whether you should. Have you fully considered the reasons why the deceased wanted to appoint the company in the first place? There are reasons why a person might want to appoint a company as executor, for instance:
The company may be seen as a sure option: despite the financial crisis, a bank is perhaps more likely to be around in 20 years’ time (in some form) than many of the trusted people the deceased knew. A well-drafted clause will ensure that if a bank or professional firm is wound up or merges, the clause is still valid to appoint the successor company.
The deceased may have worried about conflict between the beneficiaries and wanted an independent, professional executor involved to help navigate the division of their estate at an emotional time.
The deceased may have used the particular firm for many years, and trusted its staff’s knowledge of their affairs.
But sometimes there just doesn’t seem to be a reason to continue with the firm and its fees are high, even for a good quality probate service.
What can you do? A professional executor does not have to renounce probate. But when a solicitor has been appointed executor, or a firm, then the solicitor still owes a duty of care to his or her client – the deceased. Both the Law Society and the Solicitors Regulation Authority offer guidance to solicitors who have been asked to act as executors and when they have been asked to renounce probate. This guidance is a useful starting point, as if a professional departs from the guidance issued by his or her professional body, they should be able to explain the reasons why. Further points about the court’s ability to step in are made in this STEP article.
The Law Society is in effect now a trade union for solicitors and the SRA is the regulator, so the importance of following their respective guidance may be different. But in reality their advice is much the same. A solicitor should consider why their client appointed them as executor in the first place. If there are no good reasons why that particular firm continues to act and the beneficiaries have all given their unpressured, informed consent, then the solicitor should step down: most will be prepared to do so.
What to do when a bank is appointed executor? That must be for another post…