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Appointment of a professional executor

6 October 2011

1. Introduction

1.1 Who should read this practice note?

This practice note is for solicitors and law firms who provide will writing and probate services, and for solicitors and firms who are retained by, or have an economic relationship with a third party selling its own executor services, for example a solicitor or firm working with a high street bank that sells professional executor services.

1.2 What is the issue?

Clients who are considering the appointment of a solicitor or firm as executor(s) must be provided, by the potential executor(s), with sufficient information to make an informed decision about the appointment and its related costs.

Clients should be aware of the choice available for using either a professional or lay person when appointing an executor, and that if a lay person is appointed he or she may engage the services of a professional to assist with the administration of the estate on the death of the client

These requirements apply to all methods of Will writing services, including face-to-face, online and postal packs.

1.3 Professional conduct

The following sections of the SRA Code are relevant to this issue:

  • Chapter 1 on Client Care
  • Chapter 4 on Confidentiality and disclosure

1.4 Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note contact the Law Society's Practice Advice Service.

1.5 Terminology in this practice note

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should -

  • Outside of a regulatory context, good practice for most situations in the Law Society's view.
  • In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

SRA - Solicitors Regulation Authority

outcome - outcome

IB -indicative behaviour

2. SRA Principles

There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.

The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.

3. Appointing an executor

When a client is considering the appointment of an executor, you may promote you or your firm's services as an executor, but you should inform the client that such appointment is not compulsory, and you should take into account the size and complexity of the estate before promoting you or your firm's services instead of a lay executor.

You should inform the client that an executor can be either a:

  1. professional such as you or your firm, or
  2. lay person(s) such as a family member or beneficiary, who has the option of engaging a professional to assist him or her in the administration of the estate.

If you decide to promote your services you should also take into account the client's best interests. For example, if the estate is small or straightforward, it may not be appropriate to encourage the client to appoint you or your firm as the executor.

Before finalising a Will that appoints you or your firm as an executor(s) you should therefore be satisfied that:

  1. the client understands that the executor does not have to be a professional and that a lay person(s) such as a family member or beneficiary can be appointed and that lay person(s) have the option of engaging professional help after the client's death, if they require assistance, and
  2. it is not contrary to the client's best interests at the time of drafting the Will to make such an appointment.

For further information see the Solicitors' Regulation Authority's guidance on Drafting wills which appoint you or your firm as executor(s).

4. Providing information about executor fees

If a client is considering naming you or your firm as an executor you should provide an indication of the likely current costs of both:

  1. carrying out the administration of the estate, and
  2. acting as an executor.

You should also inform the client whether the fees quoted are based on:

  1. an hourly rate, and/or
  2. a percentage of the estate.

It should be clear whether the amount quoted is for the work involved in administering the estate or whether it is simply the fee for acting as an executor and supervising others doing the necessary work.

With some executorships there may be a continuing role for you as executor to act as a trustee. In these cases you should make clear any trustee fees that may be relevant to the estate.

Information about fees should be provided upfront so that the client is made aware of potential charges before deciding who to appoint. You should also ensure your client understands that these fees may change in the future.

If your services are being provided online or through the post it is important that your fees are clearly and prominently presented in any information provided to the client before the client elects to appoint you or your firm as the executor(s).

5. Renouncing probate

In some cases where you have been appointed as an executor(s) you may be asked by the beneficiaries to renounce probate on the death of your client. You are not required to do so.

If you choose to consider such a request you should look at the reasons you or your firm were appointed as executor(s). If you are both executor and trustee, you should consider whether it is appropriate to disclaim your trusteeship as well as renouncing your executorship, as the two roles are different.

You should also consider whether, at the date of death, circumstances have changed from the time the client appointed you or your firm, and what is now in the best interests of the estate, including whether the administration of the estate could easily be handled by a lay executor.

Further guidance is available from the SRA: Solicitor executor asked to renounce.

6. Further information

6.1 Practice advice

6.1.1 Practice Advice Service

The Law Society provides support to solicitors on a wide range of areas of legal practice. The Practice Advice Service is staffed by solicitors and can be contacted on 0870 606 2522 from 09.00 to 17.00 on weekdays.

6.1.2 Solicitors Regulation Authority

The SRA 's Question of Ethics web pages provides practical guidance on this issue.
Questions of ethics - May 2010

6.2 Acknowledgements

The Law Society wishes to thank members of the Wills and Equity Committee for their assistance in drafting this practice note.

 
 
 

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