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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My father nominated a solicitor as one of the executors of

Resolved Question:

My father nominated a solicitor as one of the executors of his will, in the will he also wants a trust set up and nominated the same solicitor as one of the trustees. My mother & sister are the other executors/trustees. The costs involved with this solicitor applying for probate are very large & the family are more than capable of applying for probate ourselves. The solicitor will not agree to step down as executor (he is also charging a value element for this) he quotes a practice note issued by the law society. We accept that we will need legal assistance in setting up the trust.
My question is - can we keep the solicitor on as executor (&later trustee) pay him his value element for this job only, & apply for the grant of probate ourselves removing this part of the value element & any time element of the fees?
Thank you
Jenny
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if your father has left everything to your mother or do others benefit from the will please?

Joshua :

You mention a trust. Would this be a life interest or discretionary trust?

Customer:

Hi Joshua, My mother gates all his 'personal chattels'.

Customer:

...sorry the rest of my reply follows..the residuary of the estate is put into a trust my mother gets the trust income for her life, subject to the income being held on discretionary trusts & may be paid to any beneficiary (children, grandchildren, daughters/sons in law) or accumulated. I hope this answers your query - sorry for the disjointed reply. Jenny

Joshua :

not at all. Thank you

Joshua :

the Law Society provides the following guidance for solicitors in respect of renouncing probate requests "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."

Joshua :

The solicitors regulation authority which regulates solicitors provides that a solicitor should ...provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice"


Customer:

yes, I have found all this out from the websites, it is more the division of duties (so to speak) between acting as solicitor in dealing with probate, acting as executor of will and trustee of trust. Can we divide them up & not appoint the solicitor to act for us, but if he refuses to renounce probate keep him on as executor (not withstanding the fact that he will also charge what we consider a large fee just for this). Thanks

Joshua :

my apologies for the delay in reverting to you.

Joshua :

a solicitor therefore must consider any request from beneficiaries to renounce and where an estate can readily be dealt with by a lay executor, as a stick must not seek to remain as an executor simply for the purpose of enriching himself where it is not the otherwise best interests of the estate. translating that into this situation...

Joshua :

from what you say, your father provided for a life interest trust for your mother. Whilst I by no means suggest that this is in any way likely. Where there is provision for a life interest trust, there is the opportunity for conflict between the life tenant (your mother) and the remaindermen who are entitled to the property after the life tenants passing. where professional executor has been appointed as a trustee, in such circumstances, there is a legitimate basis for that trustee to continue his role because of that potential conflict of interest

Joshua :

you could ask a solicitor to renounce as executor or of the estate and continue his role as trustee but again, he would have a legitimate reason under the terms of the above principles by which he is bound to refuse on the basis that he needs to ensure that the estate property is transferred correctly to the trust and unless he is an executor, he cannot ensure this is done

Joshua :

accordingly, my view would be that he will be able to legitimately refused to renounce on the above basis, and even if there is an element of his looking to self enrichment, it is likely he would be able to justify himself in respect of the SRA principles Law Society practice note on the above grounds I fear.

Joshua :

where the estate a simple " everything to my wife" type estate, they would be far less basis for him to sustain his appointment as executor or a naked you grounds for a complaint to the solicitors regulation authority for failure to uphold the solicitors conduct code principles but the existence of the above trust arrangements complicate this unfortunately as above.

Joshua :

What I have found can be effective in such situations can be for example if your mother has provided that the same solicitor is also her executor is pressure from the family, in particular your mother, that she is disappointed that the solicitor appears to be seeking to impose fees which on the face of it appearing necessary to her and that if this is the solicitors intended approach, she will have to give consideration to removing him as an executor of her own estate and as to whether to continue to use the practice for her affairs in the future. The threat of future loss of fee income and loss of client goodwill can often be enough to make a solicitor relax his position but of course there is no guarantee

Joshua :

however, in direct answer to your original question, there is no difficulty in law with the solicitor renouncing himself as executor or but maintaining his role as trustee. this is quite possible if the solicitor is willing

Joshua :

is there anything above I can clarify for you?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

Hi joshua, sorry I didn't get back to you earlier but I had to go out. Thanks for your reply. As i see it there are 3 issues here:If the solicitor remains as executor does this mean he has to do all the administration of the will

Joshua :

From what you say there are joint executors?

Joshua :

Is he proposing to charge an hourly rate and a percentage?

Customer:

...sorry I did it again. 3 issues 1) Executor 2) trustee 3) dealing with getting grant of probate, tax forms etc. If we accept that the solicitor has to stay on as executor & trustee can we therefore do the papperwork, tax forms probate forms ourselves thus saving money? Jenny

Joshua :

No problem - I do it too sometimes!

Customer:

to answer your question yes there are 3 executors, my mum, my sister, & the solicitor (they are also the trustees). And yes there is an hourly rate & a percentage for dealing with the estate & a further percentage for being executor (then of course there will be more for trustee)

Joshua :

There are a few issues to this. If he wants to charge all of the above, he must be able to show that he advised your father as to his proposed charges when your father decided to appoint him as executor. If he cannot show that your father was made aware of his likely charges then you may have grounds for a complaint for failure to comply with solicitors practice requirements

Joshua :

Second there is no problem in your doing much of the paperwork. Any of the executors have the equal right to act jointly so the solicitor does not have a monopoly on this.

Joshua :

Finally if the solicitor will not renounce voluntarily it is possible to make an application for him to be removed or replaced under s. 50 of the Administration of Justice Act 1985. If the beneficiaries are concerned as to the competance and communication of one or more of the executors or that one or more of them are acting in a manner amounting to a conflict of interest - i.e. in their own interest - and all other attempts have proved fruitless, and the administration is not progressing due to arguments between executors to the satisfaction of the beneficiaries they can ultimately consider the above action. Accordingly if all the possible beneficiaries and executors "gang up" on the solicitor demanding that the renounces and he refuses and you can jointly show that he appears to be acting in his own interest in doing the above application can be made.

Joshua :

Whether a s.50 application will be successful is a matter for the discretion of the court but the overriding consideration is broadly the proper administration of the estate and the welfare of the beneficiaries. It is not necessary to establish wrongdoing or fault on the part of the executors. A court will also generally replace an executor where relations between he and the beneficiaries have simply broken down to such an extent that it is no longer possible to progress the administration of the estate properly.

Joshua :

However an application should not be considered lightly as there are costs associated with the same in itself and the outcome of course is not guaranteed. It could be another way to put pressure on the solicitor though.

Joshua :

Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?

Customer:

Thanks for the above Joshua, I certainly don't want to have to go down any legal routes, I just don't want to be paying out more than we have to. You have been very helpful. Jenny

Customer:

I will rate you as soon as I can but I am locked out at the moment, I don't think I should have replied to your last mail. Your service has been very good. Jenny

Joshua :

Thanks for your comments. Please don't worry about the rating - I gather there may be a fault that is being looked into at the moment. Please don't trouble yourself any further. Thank you for trying though.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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