You have decided to make a Will. The big question is who should be your executors? I often blog about the importance of making a Will but not so often the advantages of appointing a solicitor as an executor.
Appointing a solicitor as executor rightly raises the question is “how much will that cost?” No one likes spending money on unnecessary legal fees. It can seem like a good idea at the time to leave the administration of a deceased individual’s estate in the hands of friends or family.
How often have you heard about an unscrupulous family member who systematically robs the estate blind? In one such case the youngest son was appointed as executor. There were three other siblings, one of whom had died. There was an ongoing long drawn out dispute between the siblings. It was bitter and hostile. Communication between the siblings did not exist.
The son did absolutely nothing to progress the estate and did not take out a grant of probate as he should have. The son was eventually removed by the court and an older brother was appointed as executor in his place. On his appointment he discovered that the son had taken over £75,000 from his father’s bank account. He did not share it as he should have amongst his siblings.
The newly appointed son had to start proceedings against his brother to recover the money. The High Court condemned the younger son as aggressive and rude. It was felt that he thought his position as executor gave him the right to do whatever he wished. His father’s war medals had been either lost or stolen when the younger brother was dealing with the estate. He would not surrender the title deeds to the father’s house. Had he done so, it could have been sold and the proceeds divided equally between the beneficiaries. The younger brother argued with the court as to how much he actually owed to the estate. The court took the unusual step of referring the papers to the police.
It can be tempting to believe that the role of an executor is an easy one to step into. Nothing could be further from the truth. Often the asset value of a deceased’s estate can be substantial, complex and diverse. Using the Courts to correct a mistake after an executor has got things wrong can be expensive and perhaps too late. It makes no difference even if the errors were not deliberate. Court figures show, that family members, acting as executors, can be tempted to make decisions that favour themselves. Decisions made are based on his/her own preferences or even direct assets into their own accounts.
Appointing an amateur executor also means that the person administering the estate will not be regulated. The family beneficiaries may have no course of action to recover monies, should there be errors or theft.
Appointing a solicitor as an executor particularly where family members do not get along, can ensure someone has been appointed who is impartial. They are also more likely to be objective and less emotional. The beneficiaries who have issues can go through the solicitor and don’t have to deal with their family.
The cost to an estate can be catastrophic. Arguing endlessly over one thing or another can rack up the costs tenfold. Having a solicitor is like having a mediator. He or she will put forward the best way to proceed so that the matter is dealt with efficiently. Siblings need never speak to each other again after the estate has been dealt with. Many people argue over “principles”. In my experience, I have never been able to work out what the “principle” is. Too much arguing has gone on prior to the death to know what started the arguments. What looks like a good way to save money initially, can prove costly both financially and for family relationships. Principles are usually quite expensive.
Claims against executors who have mishandled an estate have more than doubled, in the last 5 years. These claims include allegations of theft by executors, negligent or incorrect distributions being made or deliberate wrongful distributions by them.
Dealing with the administration of an estate has become more complex in recent years. There are penalties if actions and paperwork are not dealt with properly. Following the death of a loved one, many family members are not in a good place to deal with administration. It is more draining if the estate is complex. Appointing a solicitor as executor removes the responsibility for the job from the spouse/civil partner. This can be crucial at a time when they will be grieving. Increasingly, a high level of expertise is reflected in the efficiency with which they can deal with matters.
It is often thought that solicitors overcharge for their services. If they are appointed executors, people think they will charge even more!! It is true that the Solicitors Regulation Authority (they regulate solicitors) does allow solicitors to charge a fee based on a percentage of the value of the estate. However, at The Law House we do not charge in this way. Our charges are based only on the actual time spent on a matter.
In our experience, even if family members are appointed, they often appoint solicitors to deal with the estate. However, it may not necessarily be the solicitor the deceased would have appointed. By initially drafting the Will, the solicitor will discuss the estate and the family dynamics in detail with the deceased. This means that when the person dies, the solicitor is probably aware of the issues that may come to light and is probably the best person to deal with them as cost efficiently as possible.
Executors are, of course, free to appoint solicitors to act for them. If they do, the legal costs are payable from the estate. However, increasingly, people are tempted to deal with matters without legal help. This leaves open the risk of inadvertent errors being made which could leave the executor personally out of pocket.
If you are considering appointing a solicitors’ firm as an executor and would like further advice, then please contact me, Eilish Adams, on 020 3150 2525 or email me at firstname.lastname@example.org.