Appointing Professional Executors and Trustees

Can You Ask a Solicitor to be the Executor of Your Will?

What to do if you're not sure who to ask to take on the responsibility of your estate.

 

There are a lot of decisions to make when it comes to planning for the future. One of the most important of these decisions is who you are going to appoint to take on the responsibility of administering your estate. 

The role of executor is a very important one. Not only will the person you choose be responsible for winding up your estate in accordance with your wishes, they will also need to take on the job of ensuring they deal with any debts or tax liabilities that have been accrued by your estate. 

If you're in the process of writing a Will, we advise you to consider the matter carefully. Before you settle on who to choose as an executor, it might be helpful to consider:

• Whether you can trust them to carry out the instructions in your Will exactly as you would have wanted.
• Whether you are certain they would make any necessary decisions in the best interests of your estate and beneficiaries.
• Whether they would be able to cope with managing what is a complex legal and financial process.
• Whether you are confident that they would be able to remain impartial and avoid getting drawn into any possible disagreements between beneficiaries and/or other family members.
• Whether they would realistically be able and/or willing to take on the role, especially in the face of such a recent bereavement.

 

What if you don't know who to appoint?

After looking at the bullet points above, many people will have a clear idea in their mind of someone close to them who they could appoint as their executor. However, many more will not. 

We don't all necessarily have a person (or people) in our lives who we could trust to take on such a big task. Though acting as someone's executor can be a very personal thing, it is also a role that involves important legal functions, and it therefore shouldn't be taken lightly. 

It may be that you don't have anyone you feel you could ask to take on this responsibility on your behalf. This could be because you have outlived many of your family and friends, because you are dealing with estrangement, or because you have not had children of your own. 

Alternatively, it may be that you don't feel able to appoint those around you. This could be because: 

• You know they wouldn't be confident taking on such a big and official role.
• They're already dealing with situations of their own, such as illness, addiction or caring commitments.
• You expect there to be a high chance of disputes arising.
• They wouldn't have the specialist knowledge required to deal with a complex estate. 

 

Whichever of the scenarios above best describes your situation, you're likely feeling worried about who will take on the task of managing your estate when the time comes. This is a really understandable concern, and it's one that's shared by more people than you might think.

The good news here is that there is a solution. Appointing a professional executor can soothe any stresses or worries you have about planning for the future, as well as ensuring that your estate is in the best possible hands.

 

Can a solicitor be an executor of a will?

Though it's true that you don't have to be a solicitor to take on the role of executor – and, indeed, the majority of people appoint family members or trusted friends to take on the role – this is not to say that you can't be a solicitor.

It is perfectly possible to choose to appoint a solicitor as your executor. If you do this, the solicitor will be acting in their professional capacity and will be known as a professional executor. 

There are a few differences between appointing a professional executor (such as a solicitor) and a lay executor (such as a family member or friend). In addition to the difference in expertise between professional and lay executors, there are some key practical differences to be aware of in terms of cost. 

Though lay executors generally cannot expect to be paid for the work they put into winding up an estate, professional executors do have the right to charge for their services. 

 

Why might I want to appoint a professional executor?

In some situations, it might be that appointing a professional executor (or even a professional trustee, if the terms of your Will includes trusts) is the only realistic option. 

However, there can be considerable additional benefits to doing this.

 

Knowledge and experience

Trust and estate administration is a highly technical area of law. A professional executor or trustee will be able to call upon extensive knowledge and experience to administer the estate or trust as effectively as possible. This might involve taking advantage of tax reliefs and exemptions that a lay executor or trustee might not have known about.

In addition, certain kinds of complicated arrangements may not be suitable for handling by lay executors or trustees. If you have property in several different jurisdictions, for example, it can be very difficult for someone without specific expertise in this area to manage the winding up of these overseas assets. 

 

Easing the burden on friends and family

Acting as an executor or trustee can be challenging. Aside from the technicalities discussed above, the roles place significant administrative burdens on those appointed. If your intended appointees don’t respond well to paperwork or organisational tasks, being called upon to act as your executor or trustee could become very stressful.

It’s also important to consider that your executors would have to do this in the aftermath of your death, which will already be a difficult time. 

 

Avoiding legal difficulties and risks

If an executor or trustee breaches their legal duties, it’s possible for them to be held personally and financially responsible for their conduct. A professional executor or trustee will be fully aware of their legal duties, as well as the consequences of breaching them.

However, a friend or family member may not be completely clear on their role, and it could lead to mistakes being made in the administration of your estate or trust. Not only could this undermine your intentions, it could also leave the person you appointed as executor or trustee personally liable to ‘make good’ the damage they have caused.

 

Impartiality

Unfortunately, family ties can often be the source of drama and dispute. When someone dies, emotions tend to run high and this can cause tensions to flare up. If you foresee any risk of this happening, appointing a professional executor or trustee can be a useful precaution. They will be independent, removed from any family disputes and ideally placed to carry out your wishes as you intend.

This can be particularly effective in certain trust arrangements which give trustees powers to distribute the trust assets as they see fit (these are called discretionary trusts). Appointing someone from within the family may attract accusations of bias or unfairness: a professional trustee will ensure this decision-making power is exercised with impartiality.

 

What is the process of appointing a professional?

 

The process of appointing a professional executor or trustee is very straight-forward. When you are making or updating a Will, your solicitor will ask who you have chosen to name as executors and/or trustees. At this point you can ask your solicitor if they or their firm will act in this capacity.

You will not need to pay anything for this service at the time of making your Will, but the professional executor or trustee will need to be paid once they have carried out the work involved in administering your estate or trust. They will usually be paid from the estate before it is distributed to your beneficiaries.

Payment for professional executors and trustees varies depending on the firm, but is usually on the basis of both an hourly fee and an additional percentage sum. At Roche Legal, the percentage sum is 2.5% of the gross value of the estate. Professional executors can also claim the cost of expenses from the estate.

 

Appointing a mix of professional and lay executors 

The typical recommendation is to appoint between two and four executors. Doing this can ensure that there will be someone available to take on the task of administering your estate, even if one or more of the appointed individuals has died before you or is otherwise unable to act. 

If you are choosing to appoint a professional executor because you don't have anyone else to ask, you may find the above recommendation off-putting. The good news here is that the situation is slightly different if you are appointing a professional executor. Instead of needing to appoint back up executors, you could instead decide to appoint a firm of solicitors rather than an individual solicitor. This would ensure that your estate would be in good hands, regardless of whether individual professionals had retired or moved on in their career. 

It is also possible to appoint a mix of professional and lay executors in your Will. Appointing one professional trustee amongst a total of four, for example, is one way to provide the other lay trustees with the technical support and other benefits that a professional trustee may bring.

If you choose not to appoint professional executors or trustees in your Will, your friends or family members will still be able to seek legal advice from specialist solicitors to help them with carrying out the duty of administering the estate, should they wish to.