Solicitor executor requesting signing of contract before commencement of duties

[leeklad]

A close relative of my wife has left a substantial estate believed to be in six figures. The deceased appointed a solicitor as his sole executor. The solicitor has contacted my wife and another relative, (both of whom have been in touch with the solicitor in the context of funeral arrangements and without knowing the contents of the will) asking for them to sign a document accepting responsibility for his costs. When the need for such a commitment was questioned, it was suggested that such a condition was required in case the legacy was insufficient to cover the solicitor's fee.

I'd be interested to know if this is normal practice. While the matter should be academic as long as the will is straightforward, it seems unfair that my wife and one other should be asked to make such a commitment when they may not in any case be beneficiaries. Should such a condition for commencing work be necessary, surely all beneficiaries should be asked to make the commitment rather than the people who happen to have been in touch with the solicitor.

Any advice gratefully received.

[Peridot]

Hi Leeklad,

So the solicitors are the executors under the Will? Is anyone else named as the executor?
Is there anyone else who would be willing to take on the role of executor other than professionals?
Is the estate straightforward for example a property and a couple of bank accounts?

If they are residuary beneficiaries it would be appropriate for them to see a copy of the Will. It may be that the Will did not give provision for the solicitor to be paid, although if professionals have been appointed it is usual for them to receive payment from the estate before the residue is paid out to the beneficiaries.

Are the solicitors aware of the estate value? Is there a property involved? It is usual for the residuary beneficiaries to be asked to sign client care letters which would confirm if there are insufficient funds then the beneficiaries could potentially be liable. However they should also be providing a quote for their services to complete the estate administration and if they believe the costs are going to increase above the quote they should be informing the residuary beneficiaries.

A solicitor executor's duty is to preserve the assets, in addition to having a duty to the residuary beneficiaries. The Law Society compiled a practice note on the issue of solicitor executor appointment which includes a section on what to consider if as a solicitor executor you were asked to renounce their position.

The things that should be considered are what the testator's reasons for their appointment were in the first place, what their understanding of the cost implications would have been and whether circumstances have changed since the time the Will was prepared, together with consideration of what is in the best interest of the estate.

If it is not a complicated estate they should consider stepping down and renouncing their position as executor. Bear in mind, there may be reasons for refusing to step aside if for example the estate was particularly complex or if there were potential issues that could arise with beneficiaries, which they may be aware of through having taken the Will instruction.

It may be helpful to see the clause relating to payment of their fees, if you can post that on here? Of course I would want to know that I was a residuary beneficiary before signing anything.

First things first, is your wife and the other relative a residuary beneficiary. What is the approximate value of the estate and what are the solicitor's quote for dealing as executor? Is there a reason for the solicitor's to remain the executor if there is another family member willing to deal with the estate and obtaining probate?

[leeklad]

Thanks very much for your extremely helpful reply.

My wife has been promised more details of the estimated costs involved once the solicitor has viewed details of the assets and liabilities of the estate, and presumably she will then be able to discover whether she is a beneficiary, and thus whether it is reasonable to accept the financial responsibilities requested.

My wife and her relative have spent several hours collecting together what they believe is a fairly complete and accurate picture of the deceased's financial situation which has been passed on to the solicitor. As this consists largely of savings accounts, they believe there will be only a limited amount of work for the solicitor which should help reduce the cost.

Your explanation of the circumstances under which a solicitor might offer to renounce his or her position as executor is very welcome as it clarifies the actions of the deceased's solicitor who appeared at one stage to be offering such an opportunity to my wife and her relative were they to wish to take over the role. (I had previously assumed that such a transfer of the duty was not possible and that the executor, once nominated, could not forego the responsibility.) Despite this, for various family-related reasons which I would prefer not to discuss, my wife feels it better to allow the solicitor to continue in the role.

We are grateful for your confirmation that my wife should sign nothing until her status as a beneficiary is confirmed. I'm confident this is advice that she will follow!

Thankyou again for your very full explanation which has helped us understand the process unfolding much more clearly.