Solicitor who is co-executor.

[Ger]

A 'will' has the following paragraph.

"1. I appoint my Daughter [her name] of [her address] and Solicitor [solicitors name] of [solicitors address] as the Executors of this my Will."

My question is this.
In the event of the death of the testator, is there any difficulty in the daughter named in the above paragraph, (who is executor) changing ( immediately) to a different and more convenient solicitor given that the above named solicitor drafted and holds the original document of the Will and is also the co-executor?

Would this change be advisable or what potential problems could arise?

 

[mathepac]

... Would this change be advisable ...?

Personally I can't think of any good reason for doing this as the other co-executor is still in place (and still a solicitor). What seems to be the problem?

... what potential problems could arise?

The legal costs associated with executing the testator's wishes will at least double for a start and the time-scales will probably also increase with more complexity, files, correspondence, meetings, etc.

Having said that, there is nothing preventing an individual executor (or beneficiary) getting specific personal legal advice.

 

[Ger]

...... What seems to be the problem?....

In this case, there is no huge major problem and if the changing of the solicitor is troublesome, the daughter (executor) will let thing be and say nothing.
However, it does appear a little unfair in that by the solicitor drafting himself into the will as co-executor, the daughter will be 'stuck' with this solicitor who lives some distance away and the daughter will not be able to get a solicitor of her choice to carry out probate etc.

Is also appears to be the case ( if you are correct) that the daughter as executor will not be able to 'shop around' in terms of getting a competitive rate for the execution of the will.

 

[Brendan Burgess]

Hi Ger

I would strongly recommend against appointing any solicitor as executor.

Appoint the main beneficiary as executor and they can take legal advice if they need it. They can choose their solicitor and they can fire them if they are dawdling.

There is no need for a solicitor to be involved. If there is a need for a solcitor it suggests that the will is too complicated and needs to be simplified.

Get the testator to change the will to remove the solicitor as executor.

Brendan

 

[nuac]

Many solicitors avoid being appointed executors, unless the testator has some reason for asking the solicitor to act.

If there is no such reason it is not a good idea for the other executor and beneficiaries to be bound to deal with a particular practice if they would prefer to go elsewhere. A probate is a personal/family business and the family should be dealing with someone with whom they feel comfortable. There are about 7000 solicitors practising in ROI and people should be free to chose their own.

 

[TreeTiger]

I would strongly recommend against appointing any solicitor as executor.

Brendan, why do you say this? I ask because a relative has recently drawn up a will appointing a solicitor as sole executor and am wondering if this was a good or bad idea.

 

[Ger]

Hi Ger

I would strongly recommend against appointing any solicitor as executor.

Appoint the main beneficiary as executor and they can take legal advice if they need it. They can choose their solicitor and they can fire them if they are dawdling.

There is no need for a solicitor to be involved. If there is a need for a solcitor it suggests that the will is too complicated and needs to be simplified.

Get the testator to change the will to remove the solicitor as executor.

Brendan

Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well.

Is it possible that solicitors may be slightly influenced in appointing themselves as co-executors so as to secure the business of execution of the will?

 

[Brendan Burgess]

Brendan, why do you say this? I ask because a relative has recently drawn up a will appointing a solicitor as sole executor and am wondering if this was a good or bad idea.

Because you are giving complete control to someone who has a conflict of interest.

They often delay distributing the estate and have been subject to complaints to the Law Society.

If there is property to be conveyed, they will do so at the standard rates rather than at the much cheaper rates available.

But primarily, because they will be in no rush. If the main beneficiary is the executor, they will chase the various banks and other parties to get the information they need and see that it is done promptly.

Brendan

 

[Complainer]

Is it possible that solicitors may be slightly influenced in appointing themselves as co-executors so as to secure the business of execution of the will?

Is the Pope a Catholic?
Does a bear....

 

[mf1]

"Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well."

Lads! Has it occurred to you that perhaps these are the testator's wishes?

I only ask.

Personally, as a solicitor, I would resist being appointed as executor unless I have a very personal connection with the testator BUT sometimes it is the testator's wish.

mf

 

[Ger]

The reason I am alert to this situation is that a similar situation occurred before in my family before on the death of one of my own parents. I was the co-executor along with the solicitor. He explained to me that the reason why he had suggested to the deceased that he be made co-executor was that it is possible that the family executor can die or emigrate or be unavailable to co-operate or unavailable to take up the duty as executor and that it is only in that case that he (the solicitor) becomes active as an executor.
He resigned his position as executor (which he stated he normally does) once I had agreed to proceed with the execution of the will and had accepted the position as executor and I signed something to that effect.

Perhaps I am being a little suspicious here but I am wondering would he have resigned as co-executor had I had been taken my business elsewhere?

Anyhow, he charged approx € 8,000 for the job afterwards and it was fortunate (for the solicitor as well) that the deceased had savings that he could withdraw from as there were still loose ends (e.g. House registrations) that were forgotten about and are only been tidied up now .(The fact that the properties were not registered became apparent after 4 years when one of the beneficeries needed to raise a loan. The solicitor reluctingly gave a letter of undertaking to temperoraly fix this quickly). Ideally, I should not have paid his bill until this work was done but unfortunately (within a few months of the death) I as executor signed something authorising the release of bank funds to be paid to beneficeries (who were anxious for their money) and his bill was included in this.
Anyhow, a similar situation could possibly occur in the wider family the second time around (but with a different solicitor) and I am just wondering what can be done or what choices are out there.

 

[Complainer]

Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well.

I don't see why this rules out a change. The co-executor could raise this matter and arrange for a simple change to be made. Ideally, someone with no beneficial interest in the will should be one to bring this up.

 

[nuac]

In case there is some misunderstanding, a will is a confidential document and is not discussed within the family and beneficiaries unless so directed by the testator.

Otherwise nobody sees it until testator dies

 

[Ger]

In case there is some misunderstanding, a will is a confidential document and is not discussed within the family and beneficiaries unless so directed by the testator.

Otherwise nobody sees it until testator dies

I agree with you here and this issue has not been generally discussed. The only reason the 'daughter' confided in me was that I had acted as executor in another will.
I would be 100% against any interference now. What if the testator decided to draw up a new will and change the terms? Indeed, I generally think maybe that it would be best to leave well enough alone, at least for now.

 

[Brendan Burgess]

Lads! Has it occurred to you that perhaps these are the testator's wishes?

It could be the testator's wishes, but is it not more likely to be the solicitor trying to get some work for themselves?

Fair play to you mf1 for declining to be appointed executor. Are there Law Society guidelines on this by any chance?

 

[Vanilla]

There are no law society guidelines on whether or not solicitors should act as executor.

A solicitor is often a good choice to act as executor. They are aware of the liability an executor is exposed to, they are not a beneficiary, they are neutral to any family feuds that may be going on, they know all there is to know about probate/wills/CAT and tax planning and any land transmissions necessary. It is in the best interest of the solicitor to finalise the estate quickly, in order to obtain their fee and also keep the beneficiaries ( potential clients) happy and show them a good service. Nobody will feel passed up if the solicitor is the executor ( sometimes one sibling might feel hard done by if another is the chosen one).

When I take instructions for a will I ask the testator who they would like to appoint as executor. If they don't know or understand fully what an executor does then I explain it- this is quite common. Sometimes people come in with a pre-concieved notion that their solicitor must be the executor, this is quickly disabused. Some people come in and clearly have a difficulty choosing a family member to act. I would normally present them with different options- a family member, spouse, trusted friend, accountant, solicitor. It is entirely up to the testator and everything is explained fully to them.

The suggestion by Brendan is that a solicitor shouldnt act as there is a 'conflict of interest'. This is, I assume, because of the fact that if a solicitor is sole executor then they can insist that their firm deals with the probate and therefore can charge whatever fee they like. This is simplistic and, to me, another example of Brendan's antagonistic attitude to solcitors lately.

It is true that if a solicitor is appointed sole executor that they CAN insist their firm deals with the probate. However in reality, if there is family opposition it is more than likely that most solicitors would simply renounce. Even if they didn't and there was a contention by the family that the fee charged was too high, the beneficiaries have recourse to either the law society or the taxing master.

Although it may be hard to believe in this anti-solicitor age, there are many people for whom their solicitor is someone they trust to carry out their requests after they die, and to whom, allowing them to appoint their solicitor their executor gives them great peace of mind.

 

[Brendan Burgess]

Hi Vanilla

I didn't think that I was particularly anti-solicitor lately. I must review my posts.

I don't believe in using solicitors when they are not necessary. Of course, solicitors know all about probate, tax, conveyancing etc, so the executor can ask a solicitor for advice.

I appreciate the point about family feuds. But the solicitor drafting the will should make it very clear to the testator that the will should be clear and easy to execute. I have read a will recently that is just so unnecessarily complicated, that it will take up a lot of legal time in the courts sorting it out.

My sample might be biased. I have done one probate myself and did it promptly without the use of a solcitor. I know other lay people who have done them as well. The few I am familiar with where solicitors were involved went on and on and on and on...

And I presume if the beneficiaries are unhappy, there is very little that they can do in practice about the solicitor?

 

[Vanilla]

I could also make the point that having an 'outside' executor is often a waste of time. I deal with quite a bit of probate. The vast majority of the time, although I take care in explaining every thing to each executor, being an executor means little more than signing where the solicitor tells you to. From my point of view in these cases having to wait for the executor to call to approve, instruct or sign off on documents is actually delaying the estate.

These days extracting a grant of probate can take between 3 months to a year. It rarely goes beyond a year except where there is a problem of some kind.

The point has been made on AAM over and over again- in all professions there are good and bad- so Brendan may have experienced estates which 'went on and on and on' but these would be the exception. Most probates are handled efficiently, quickly and quietly but these are the ones you don't hear about, naturally.

If beneficiaries are unhappy with a solicitor they have more powers than if the executor were a lay person, because on top of all the redresses in the Succession Act against a misbehaving executor you have all the additional layers of complaint against the solicitor, ie complaint to the law society, negligence action, disciplinary tribunal, compensation fund, taxing master.

 

[Artois]

Because you are giving complete control to someone who has a conflict of interest.

They often delay distributing the estate and have been subject to complaints to the Law Society.

If there is property to be conveyed, they will do so at the standard rates rather than at the much cheaper rates available.

But primarily, because they will be in no rush. If the main beneficiary is the executor, they will chase the various banks and other parties to get the information they need and see that it is done promptly.

Brendan

Generally Solicitors seek to avoid being appointed as executor and will only do so if their client specifically requests them to act.

A competent Solicitor has a vested interest in progressing a probate as quickly as possible in order to get the file closed and to get paid. Brendan's statement implies that Solicitors who delay probate are the norm and not the exception. His statement is misleading and is not correct.

In addition to the valid reasons set out by Vanilla the testator may wish to engage a Solicitor as executor to protect a weaker family member's interests from a more dominant sibling in essence to prevent one family member bullying another.

 

[Bronte]

I do not agree that in general solicitors decline to act as executor. The precise reason that wills are so cheap to draw up is because in most cases the solicitor drafting the will ends up as executor to the will. Probate is one of the greatest fee earners for solicitors.

In my case I have my solicitor as co executor precisily because I trust that person to be neutral and to act in my best interest after my death. I also know that the fee will be negotiable and if there are conveyances for example that they won't be done at the scale fee level. In most cases this will not happen and the estate will be charged the full fee so it would really be pointless taking it to the taxing master.

I have yet to meet a person who said probate was quick and easy via a solicitor's.