Will clause

imported_jac

Hi

My sister has had a will drawn up by a company called Solicitors Probate Services Ltd. She has asked me to look at it for her as there is a bit that says if her two chosen executors and trustees (her daughters) are unwilling to act then her solicitor from SPS will be her executor and trustee. It later says that trustees and executors will have the power to invest money. Is this a standard thing or would it be better for her to go to a local solicitor?

Thanks
Jackie

Willman_Rodders

Hi imported_jac,

There are two parts to your question.

1. the Investment Clause.
Prior to the Trustee Act 2000 the options for executors (and trustees) to invest were very restricted unless the trust document (in this case the will) authorised wider investment opportunities. For this reason it was common practise to include a clause authorising wider investment powers.

The Trustee Act 2000 automatically widened the options available to executors/trustees significantly, removing the need for such a clause to be included in the majority of people's cases. The Act also imposed a duty of care with regards to those investments (including the requirement to seek professional guidance in certain circumstances.). Even with those wider powers there is a clause included by some will-writers that expands upon those wider powers still further, to cover some very specific circumstances.

So, in answer to your question - yes it is normal to include 'the power to invest' clause in a will.

2. Appointment of Professional Reserve Executors.
This is a common clause; it gives the testator (the person making the will) peace of mind knowing that if their chosen executors cannot act then someone somewhere will do so. The drawback and risk is the unknown cost of providing this service.

Fees do vary widely from provider to provider, and doing probate work is a very profitable business. Fees can be charged as a percentage of the estate with a fixed minimum fee. These minimum fees are often £2000+. A surprisingly high number of family executors do elect to use the professional executor at the time of death.

Whether you should arrange for the will to be redrafted is difficult to advise upon. Your local solicitor will also charge for the probate service (as does Solicitors Probate Services Ltd), and you will incur the cost of remaking your will. it might be worth contacting the will writing company for an indication of fees they are likely to charge if appointed to act.

localhero

It is always advisable to have fallback executors appointed, but as has been pointed out their fees for work that a layperson could have done could be quite expensive. The other thing to consider is if the solicitor wants to take up this appointment on death, then they cannot be stopped.

Obviously factors to consider when appointing executors is wilingness, ability and honesty. But perhaps it may be worth appointing a trusted friend/family member as a reserve. If they do require legal help, then this can be obtained (and paid for out of the estate), rather than being stuck with the professional.

LittleVoice

If the family/friend executors have an interest in the residual amount of the Will, then they will have an interest in doing the work themselves rather than spending their inheritance on SPS Ltd or other professional firm.

Family/friend executors should only be appointed where they have agreed to do it at the time the Will is drawn up. When you have people who have agreed to do it, the only reason I can see to mention in the Will an alternative professional firm as executor is that the executors may predecease the testator. In the event of the family/friend executors not agreeing to exeucute the Will at the time when it would be required of them, then a solicitor could be asked by them to do the work.