Can a Solicitor Act As Executor?
An executor is a person appointed in a will to administrate the deceased estate. A testator chooses an executor from family or friends or appoints a professional to take on the responsibility. A testator’s solicitor can be a sensible choice as they are an independent party to the proceedings who can bring legal knowledge and skill to the task. This article explains the benefits of choosing a solicitor to act as executor.
The Role Of The Executor
An executor is responsible for administrating the estate in good faith in the best interests of the estate and the beneficiaries of the will. Depending on the size of the estate and the potential for dispute over the provisions of a will, the best approach may be to engage a professional executor. The testator’s solicitor is in a good position to discharge these duties with impartiality and professionalism. The solicitor already has possession of the will and, as he or she helped to draft the provisions, is well placed to understand the testator’s intent.
Solicitor Acting As Co-Executor
One option for a testator is to appoint several executors in their will: a family member and a solicitor. This allows the family member to focus on the more personal requirements while the solicitor handles the administrative duties and any litigation. The solicitor will also be able to monitor their co-executor’s activities to ensure they are correct and appropriate.
Advantages of having a Solicitor act as Executor
A solicitor should have an excellent knowledge of wills and estates law and will be able to defend the estate from challenge or contest. With the prevalence of will disputes in Australia, this can be a clear advantage. The solicitor will be familiar with the family dynamics and may be able to resolve potential problems before they escalate to litigation. They are also well equipped to handle other executor duties, including:
- Liaising with the family of the deceased to make funeral and burial arrangements;
- Taking inventory and preserving the assets of the estate;
- If necessary, investing the assets of the estate;
- Discharging the debts of the estate;
- Attending to outstanding tax liabilities;
- Applying for a Grant of Probate; and
- Distributing the bequests in accordance with the testator’s wishes.
Disadvantages of having a Solicitor act as Executor
In some circumstances, there will be disadvantages to having a solicitor act as executor. A solicitor will charge fees to perform the duties of the executor, and especially in the case of small estates, this may be an unnecessary expense that reduces the value of the overall estate.
In addition, the duties of an executor are time-consuming, and many solicitors are too busy or disinclined to take on work that will not bring the same remuneration as their legal work. A solicitor who does accept the appointment does so with the awareness that they need to act very carefully to avoid complaints from beneficiaries and allegations of misconduct.
Unlike a layperson, a solicitor must adhere to strict rules while acting as an executor. For instance, in New South Wales and Victoria, the Legal Professional Uniform Law (LPUL) requires that a solicitor inform the testator in writing of their entitlement to executor’s commission, any legal costs they can charge and how this will limit other people’s claim to commission. A solicitor can only be beneficiary of an estate under select circumstances, such as if they are an immediate family member of the deceased.
A solicitor may charge a fee for administrating the estate, but only with the permission of the court. A solicitor can only charge lawyer’s rates for legal work, such as:
- Applying for probate and any other court procedure;
- Advice on legal questions;
- Advice on interpretation of the will;
- Identification of complex assets of an estate; and
- Conveyancing and transfer of title.
The testator may make provision in the will for the payment of a solicitor’s executorship or the solicitor and the beneficiaries can come to a collective agreement as to compensation. Alternatively, the solicitor can apply to the court for an executor’s commission. This ensures that the solicitor only receives a fair amount for their work and protects the deceased estate from misuse of funds. The court will not allow a solicitor to “double-dip” by charging the estate for executorial work at the same time as claiming an executor’s commission. A solicitor should maintain a separate file pertaining to executorial work to avoid accusations of misconduct.
There are two main circumstances when it may be advisable to appoint your solicitor as your executor. Firstly, when the estate is large or complicated, and secondly to ease the burden on a person who is grieving and will struggle to manage the detailed administrative duties of an executor. At Armstrong Legal, our experienced wills and estate solicitors can help you draft your will and act as the executor of your complicated estate. The contested wills team can also help if you need to arrange the removal of an executor. Please contact or call our offices on 1300 038 223 for advice or legal representation.