Must a solicitor resign as executor if asked?

A case has highlighted risks and high costs that can be faced by solicitors refusing to stand down as executor without a valid reason.

For a solicitor to include themselves in a Will as executor, there should be a good reason for doing so, and the implications of cost should be explained to the testator. For those considering asking a solicitor to stand down (renounce) as executor, it is vital to do this at the earliest possible moment, as it is FAR more difficult (and expensive) to remove a professional executor once they have begun work (“intermeddled”).  Anyway, here is a particular case:

asked to resign as executor

The deceased left an estate including a property to her grandson and a substantial financial legacy to her daughter. The solicitors firm had been appointed as executor in the Will, but the daughter asked the solicitor to step down as executor as she felt that the estate was fairly simple and wanted to save money by doing the work herself.

The solicitors concerned refused to resign as executor, and the case went to court to have them removed. Over two years delay were caused by the firm appealing decisions against them twice, but they ended up being ordered by the Judge to step down and pay £25,000 in legal fees.

In short, professional executors need to put aside financial gain and make a reasoned decision as to why the Court would support them in retaining the role of executor.

Possible reasons for the solicitor to refuse to step down might be (and we only say might!)

  • Disputes or serious tensions between beneficiaries.
  • Complex estates.
  • Third-party disputes.
  • Suspected fraud
  • Health and mental health issues of beneficiaries might impact on the decision as to whether or not to stand down.
  • Capacity of the family executor to do the work.
  • It is also important to note that an Executor cannot easily renounce their role if they have already begun work on the Estate, for example by accepting assets or paying off debts. This is known as ‘intermeddling’.  However, if there are pressing reasons to remove them, it is possible to apply to the High Court.  If the judge disagrees with you, you may find yourself saddled with both sides’ costs, so it is not something to be done without careful consideration and advice.

However, if the reason the solicitor is asked to give up as executor is because a more reasonable quote had been obtained, there is some doubt as to whether most of the above excuses would be relevant, unless, maybe, the solicitor appointed had an unusually intimate knowledge of the estate.

This is what the Solicitors Regulation Authority has to say:

The appointment of executors

Your client might decide to appoint you, your business or other people in your business as executors in the will you are drafting for them.

However, you must not exploit a client’s lack of knowledge by leading them to believe that appointing a solicitor as an executor is essential or that it is the default position for someone making a will.

Principle 7 of the Principles requires you to act in the best interests of each client. In this context this means not encouraging clients to appoint you or the business you work for as their executor unless it is clearly in their best interests to do so.

In some cases it might be beneficial for a client to appoint a solicitor to act as an executor – for example, if their affairs are complex, or there are potential disputes in the family. However, in other cases there may be little or no advantage to the client – for example, if their estate is small or straightforward. A professional executor is likely to be more expensive than a lay person and the client should be advised about this.

Before drafting a will which appoints you or your business (or someone else in the business) as the executor(s), you should be satisfied that the client has made their decision on a fully informed basis. This includes:

  • explaining the options available to the client regarding their choice of executor;
  • ensuring the client understands that an executor does not have to be a professional person or a business, that they could instead be a family member or a beneficiary under the will, and that lay executors can subsequently instruct a solicitor to act for them if this proves necessary (and can be indemnified out of the estate for the solicitors’ fees);
  • recording advice that is given concerning the appointment of executors and the client’s decision.

In summary, there will often be no reason for a solicitor to refuse a request to stand down as executor of an estate, and if they do refuse to resign as executor, they need to justify that decision.

Related:  Probate Solicitors Fees.     Save on probate fees.