Appointing a Professional as an Executor

Malthusian

Tiglet2 said:

My aunt appointed a probate solicitor as Executor of her estate, back when she did her Will in 2016.  She died in June 2023 and the solicitor got probate granted in December 2023.  We are still waiting for the solicitor to distribute the estate as they are waiting for any creditors to come out of the woodwork and to settle any debts.  We get no information from them about likely timescales.

Well, you are still within the "executor's year" and six months after death to obtain probate doesn't surprise me given the backlog at the Probate Office. Are there any properties in the estate or anything else that needs to be liquidated?

If the Gazette notice was placed more than two months ago (which the executor could only do once probate was granted) then he will not be liable if any more creditors come out of the woodwork.

The estate is simple, an excepted estate, one main beneficiary and several residual beneficiaries. Although a few of us were more than capable of carrying out the administration of her estate, we have had to use this solicitor as they were the named Executor and they refused to renounce. This particular solicitor has actually retired and no longer practices, but rather than hand it to whatever company took over the files, he is doing it himself. He is charging around £15,000 for his "services".

Is there a clause in the Will that allows him to do that? Or have the beneficiaries approved it?

If he is retired then Richman v WAG Davidson arguably does not strictly apply, as that involved professional executors and yours is an amateur. But given beneficiaries have the right to ask a professional executor to step down in order to save money, I would be surprised if they did not have the right to ask an amateur to step down for the same reason. However, as probate has been granted it is a moot point - the beneficiaries have left it too late now. 

Flugelhorn

Malthusian said:

Tiglet2 said:

My aunt appointed a probate solicitor as Executor of her estate, back when she did her Will in 2016.  She died in June 2023 and the solicitor got probate granted in December 2023.  We are still waiting for the solicitor to distribute the estate as they are waiting for any creditors to come out of the woodwork and to settle any debts.  We get no information from them about likely timescales.

Well, you are still within the "executor's year" and six months after death to obtain probate doesn't surprise me given the backlog at the Probate Office. Are there any properties in the estate or anything else that needs to be liquidated?

If the Gazette notice was placed more than two months ago (which the executor could only do once probate was granted) then he will not be liable if any more creditors come out of the woodwork.

The estate is simple, an excepted estate, one main beneficiary and several residual beneficiaries. Although a few of us were more than capable of carrying out the administration of her estate, we have had to use this solicitor as they were the named Executor and they refused to renounce. This particular solicitor has actually retired and no longer practices, but rather than hand it to whatever company took over the files, he is doing it himself. He is charging around £15,000 for his "services".

Is there a clause in the Will that allows him to do that? Or have the beneficiaries approved it?

If he is retired then Richman v WAG Davidson arguably does not strictly apply, as that involved professional executors and yours is an amateur. But given beneficiaries have the right to ask a professional executor to step down in order to save money, I would be surprised if they did not have the right to ask an amateur to step down for the same reason. However, as probate has been granted it is a moot point - the beneficiaries have left it too late now. 

also can an "amateur" charge ?  

Malthusian

Flugelhorn said:

also can an "amateur" charge ?  

Having read over this Gazette article a second time I'm now unsure. I'll clarify that I glibly referred to this executor as "an amateur" because although he is a former solicitor, he is presumably no longer registered with the regulator, no longer required to keep his knowledge up to date and not covered by professional indemnity insurance. 

The Gazette says (emph added):

Non-professional executors, such as a lay person or family member or friend, are not entitled to be paid for their time spent administering the estate, unless a lay person’s charging clause is included within the will. However, this must be carefully drafted, as it could lead to a dispute as to whether they are entitled to receive any remuneration for carrying out their services.

However:

The judgement in the recent case of Da Silva v Heselton (2022) provided some interpretation as to when an executor can rely on a charging clause to charge for work done in carrying out the estate administration: "a trustee or executor can rely upon the charging clause in the Will to charge for work done or time spent in the administration of the estate only if that work falls within the scope of their profession or business in question; that is to say if it is work of a type which would attract or incur their usual professional fees."

I don't know whether a retired solicitor would be able to rely on a charging clause for their "usual professional fees". As Da Silva v Heselton is only two years old, maybe it hasn't even been fully tested in court.

And of course we don't know whether Tiglet2's aunt's Will even has a charging clause, or if the beneficiaries agreed his fee. (If the beneficiaries affected agree to a fee then I would assume they can pay anyone any amount for anything they like - it becomes another kind of Deed of Variation.)

Tiglet2

Malthusian said:

Flugelhorn said:

also can an "amateur" charge ?  

Having read over this Gazette article a second time I'm now unsure. I'll clarify that I glibly referred to this executor as "an amateur" because although he is a former solicitor, he is presumably no longer registered with the regulator, no longer required to keep his knowledge up to date and not covered by professional indemnity insurance. 

The Gazette says (emph added):

Non-professional executors, such as a lay person or family member or friend, are not entitled to be paid for their time spent administering the estate, unless a lay person’s charging clause is included within the will. However, this must be carefully drafted, as it could lead to a dispute as to whether they are entitled to receive any remuneration for carrying out their services.

However:

The judgement in the recent case of Da Silva v Heselton (2022) provided some interpretation as to when an executor can rely on a charging clause to charge for work done in carrying out the estate administration: "a trustee or executor can rely upon the charging clause in the Will to charge for work done or time spent in the administration of the estate only if that work falls within the scope of their profession or business in question; that is to say if it is work of a type which would attract or incur their usual professional fees."

I don't know whether a retired solicitor would be able to rely on a charging clause for their "usual professional fees". As Da Silva v Heselton is only two years old, maybe it hasn't even been fully tested in court.

And of course we don't know whether Tiglet2's aunt's Will even has a charging clause, or if the beneficiaries agreed his fee. (If the beneficiaries affected agree to a fee then I would assume they can pay anyone any amount for anything they like - it becomes another kind of Deed of Variation.)

You are correct, the solicitor is no longer regulated by the SRA.  The beneficiaries did not agree his fee, but I will check the Will for a charging clause.  Sorry OP, don't want to derail this thread.

RHemmings

Thanks all. It's not that I don't trust either my son or fiancee to disinherit the other. It's just that my fiancee will not yet be up to speed on how to do things in the UK. Part of that is a language barrier (NB: I speak her native language fluently). The other is that I don't think my son is ready for it. 

It seems that I was internationally 'lucky' about inheritance tax. As my parents lived in New Zealand. There is no inheritance tax there, and the information I have so far (from postings online by HMRC) is that I don't have to pay inheritance tax in the UK as the inheritance is from overseas. However, it's high in my mind that if I died tomorrow, my son would pay a lot of inheritance tax. I'm trying to talk to him about this, but he has other things he's getting on with in his life, and isn't really in the right space to talk about inheritance. I've made several offers to him to buy him a house, but he doesn't want it. If I made him the executor, then I'd be concerned about it not happening. The situation here may be different (other beneficiaries have sued), but the 'head in the sand' thing ... that's what I would be worried about. https://www.tozers.co.uk/insights/what-happens-if-an-executor-ignores-their-duties

My fiancee has a Masters degree in business, and has (today, after I started this thread) agreed with my suggestion that she does a college one year course on ESOL and Business Administration as soon as visas allow. After that one year, I expect her to be in a much better position to do things such as be an executor of a will. But, I don't want to put that on her too early. 

On the other hand, I don't want to have no will at all. Even if it's an interim situation, I would prefer to have a will in place and that it would be executed professionally. While I understand the costs could be high, I'm concerned that there may be worse possible outcomes. 

My fiancee has said that 'all the money in England should go to your son' (if I die), but a) I don't think this fair on her (and her son), and b) with all the faith in the world, things can happen and I'd prefer not to be in a situation where, if I marry with no will, then if I die she gets everything and my son gets nothing. Even though I believe she would share things fairly with him, it's better that things are tied down. 

EDIT: My son has older half-sisters and a cousin (on my ex-partner's side). He also has a mother. I could approach one of them, and the cousin and one half-sister in particular might be suitable to take on the role. They wouldn't normally be beneficiaries, but if I'm writing a will I could write in a, say, £10,000 bequest to whoever agrees to take on the role of executor, making them a beneficiary of the will. And, keeping the money within the extended family. 

RAS

I think edit is a good idea.

I'm not going to go into details but a member of the family named his son and another as executors, assuming son would do it. Eventually another had to ask the son to renounce as years later probate had not been sought. You know your son, the family member hoped although the evidence wasn't there to support that hope.

Keep_pedalling

RHemmings said:

Thanks all. It's not that I don't trust either my son or fiancee to disinherit the other. It's just that my fiancee will not yet be up to speed on how to do things in the UK. Part of that is a language barrier (NB: I speak her native language fluently). The other is that I don't think my son is ready for it. 

It seems that I was internationally 'lucky' about inheritance tax. As my parents lived in New Zealand. There is no inheritance tax there, and the information I have so far (from postings online by HMRC) is that I don't have to pay inheritance tax in the UK as the inheritance is from overseas. However, it's high in my mind that if I died tomorrow, my son would pay a lot of inheritance tax. I'm trying to talk to him about this, but he has other things he's getting on with in his life, and isn't really in the right space to talk about inheritance. I've made several offers to him to buy him a house, but he doesn't want it. If I made him the executor, then I'd be concerned about it not happening. The situation here may be different (other beneficiaries have sued), but the 'head in the sand' thing ... that's what I would be worried about. https://www.tozers.co.uk/insights/what-happens-if-an-executor-ignores-their-duties

My fiancee has a Masters degree in business, and has (today, after I started this thread) agreed with my suggestion that she does a college one year course on ESOL and Business Administration as soon as visas allow. After that one year, I expect her to be in a much better position to do things such as be an executor of a will. But, I don't want to put that on her too early. 

On the other hand, I don't want to have no will at all. Even if it's an interim situation, I would prefer to have a will in place and that it would be executed professionally. While I understand the costs could be high, I'm concerned that there may be worse possible outcomes. 

My fiancee has said that 'all the money in England should go to your son' (if I die), but a) I don't think this fair on her (and her son), and b) with all the faith in the world, things can happen and I'd prefer not to be in a situation where, if I marry with no will, then if I die she gets everything and my son gets nothing. Even though I believe she would share things fairly with him, it's better that things are tied down. 

EDIT: My son has older half-sisters and a cousin (on my ex-partner's side). He also has a mother. I could approach one of them, and the cousin and one half-sister in particular might be suitable to take on the role. They wouldn't normally be beneficiaries, but if I'm writing a will I could write in a, say, £10,000 bequest to whoever agrees to take on the role of executor, making them a beneficiary of the will. And, keeping the money within the extended family. 

What makes you think your son would have to pay a lot of IHT? Can you give us a rough idea of your net worth? 

Your will should probable contain an immediate post death interest trust which would provide security for your wife and protect your son’s inheritance, 

RHemmings

Keep_pedalling said:

RHemmings said:

Thanks all. It's not that I don't trust either my son or fiancee to disinherit the other. It's just that my fiancee will not yet be up to speed on how to do things in the UK. Part of that is a language barrier (NB: I speak her native language fluently). The other is that I don't think my son is ready for it. 

It seems that I was internationally 'lucky' about inheritance tax. As my parents lived in New Zealand. There is no inheritance tax there, and the information I have so far (from postings online by HMRC) is that I don't have to pay inheritance tax in the UK as the inheritance is from overseas. However, it's high in my mind that if I died tomorrow, my son would pay a lot of inheritance tax. I'm trying to talk to him about this, but he has other things he's getting on with in his life, and isn't really in the right space to talk about inheritance. I've made several offers to him to buy him a house, but he doesn't want it. If I made him the executor, then I'd be concerned about it not happening. The situation here may be different (other beneficiaries have sued), but the 'head in the sand' thing ... that's what I would be worried about. https://www.tozers.co.uk/insights/what-happens-if-an-executor-ignores-their-duties

My fiancee has a Masters degree in business, and has (today, after I started this thread) agreed with my suggestion that she does a college one year course on ESOL and Business Administration as soon as visas allow. After that one year, I expect her to be in a much better position to do things such as be an executor of a will. But, I don't want to put that on her too early. 

On the other hand, I don't want to have no will at all. Even if it's an interim situation, I would prefer to have a will in place and that it would be executed professionally. While I understand the costs could be high, I'm concerned that there may be worse possible outcomes. 

My fiancee has said that 'all the money in England should go to your son' (if I die), but a) I don't think this fair on her (and her son), and b) with all the faith in the world, things can happen and I'd prefer not to be in a situation where, if I marry with no will, then if I die she gets everything and my son gets nothing. Even though I believe she would share things fairly with him, it's better that things are tied down. 

EDIT: My son has older half-sisters and a cousin (on my ex-partner's side). He also has a mother. I could approach one of them, and the cousin and one half-sister in particular might be suitable to take on the role. They wouldn't normally be beneficiaries, but if I'm writing a will I could write in a, say, £10,000 bequest to whoever agrees to take on the role of executor, making them a beneficiary of the will. And, keeping the money within the extended family. 

What makes you think your son would have to pay a lot of IHT? Can you give us a rough idea of your net worth? 

Your will should probable contain an immediate post death interest trust which would provide security for your wife and protect your son’s inheritance, 

I'm not sure what to put as my net worth. My gross worth would probably be about £700k. That assumes that my house is worth what I paid for it. 

I didn't understand inheritance tax in the UK - my inheritance came from overseas. It seems that the £325k threshold is on the estate, not divisions of it. Hence, something needs to be done. Or there will be six figures of tax paid. I think. 

I've proposed the 'EDIT' solution above to my son, and once I finish this post, to my fiancee. 

In the case of my son, and to be honest myself if I was executor for someone else, I'm not sure that either of us would do the job and there is a risk that a situation such as that described by @RAS would happen. If the cousin will take on the job, then that would be a weight off my mind. 

In terms of a trust for my (future) wife, I have offered to buy a house for my son. This would transfer enough funds to reduce the size of the estate, and mean that should I predecease my wife then the current house I'm in could be divided between them, but left in trust for her to live in until death or she moves elsewhere. But, my son's life is gallivanting around the country - important for him, but he doesn't want to be tied down to a single location yet. 

Flugelhorn

the usual quoted threshold these days for a couple is a million but not sure how that pans out when most will be left to the son. 

RHemmings

Flugelhorn said:

the usual quoted threshold these days for a couple is a million but not sure how that pans out when most will be left to the son. 

Clearly I need to understand more about how IHT works. Because the examples I've seen online have been based on the £325k threshold and have assumed tax above that.

Note that the plan is for more than half to go to my son out of current (pre-marriage) assets. But, without any rent to pay any more (though, we'll see about maintenance), costs are much less than income. Money that builds up post-marriage will be handled differently - not sure how yet. I'm looking for a fair result. 

EDIT: My reading from now on. I didn't use the word 'avoid' in my search term.