An executor is appointed in a Will to administer the deceased estate. A Will-maker (called a testator) can choose their executor from friends or family or appoint a professional to take on the responsibility. A testator’s solicitor is an independent party who can bring legal knowledge and skill to the task. This article sets out the pros and cons of having a solicitor act as executor.

The executor’s role

An executor is responsible for administrating the estate in good faith in the best interests of the estate and the beneficiaries named in the Will. Depending on the potential for dispute over the provisions of a Will and the size of the estate, the best approach may be to engage a professional executor. The testator’s solicitor is in a good position to discharge these duties with professionalism and impartiality. The solicitor already has the Will and helped to draft the provisions, so she or he 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 solicitor and a family member. This allows the solicitor to handle the administrative duties and any litigation whilst the family deals with more personal requirements. The solicitor can monitor their co-executor’s activities to ensure they are correct and appropriate.

Solicitor acting as executor; Pros and Cons

Pros

A solicitor should be familiar with Wills and estates law and be able to defend the estate from challenge or contest. That could be an advantage given the prevalence of Will disputes in Australia. If the solicitor is familiar with the family dynamics, she or he may be able to resolve potential problems before they escalate to litigation. They are also well equipped to handle other executor duties, including:

1. Discharging the estate’s debts;
2. Attending to outstanding tax liabilities;
3. investing the estate’s assets if necessary;
4. Taking inventory and preserving the estate’s assets;
5. Applying for a grant of probate; and
6. Liaising with the deceased’s family to make funeral and burial arrangements;
7. Distributing bequests in accordance with the testator’s wishes.

Cons

In some circumstances, there may be disadvantages to a solicitor acting as executor. A solicitor will charge fees to perform the executor’s duties. In the case of small estates, that may be an unnecessary expense which reduces the value of the estate.

A solicitor-executor must act very carefully to avoid complaints from beneficiaries and allegations of misconduct. An executor’s duties are time-consuming, and a solicitor may be too busy or disinclined to take on work that will not bring the same remuneration as their legal work.

Additionally, unlike a layperson, a solicitor must adhere to strict rules while acting as an executor. For example, the Legal Professional Uniform Law (LPUL) requires that a solicitor inform the testator in writing of their entitlement to any legal costs they can charge,  executor’s commission, and how this will limit other people’s claim to commission. A solicitor can only be a beneficiary of an estate in certain circumstances, such as if they are an immediate family member of the deceased.

Executor’s commission

A solicitor may charge executor’s commission, but only with the permission of the court. A solicitor can only charge lawyer’s rates for legal work, such as:

1. Applying for probate and any other court procedure;
2. Advice on interpretation of the will;
3. Litigation;
4. Identification of complex assets of an estate;
5. Advice on legal questions; and
6. Conveyancing and transfer of title.

The solicitor and the beneficiaries can come to a collective agreement as to compensation or the testator may make provision in the will for the payment of a solicitor’s executorship. 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 for executorial work to avoid accusations of misconduct.

Here to help

Two main circumstances when it may be advisable to appoint your solicitor as your executor are:

1. when the estate is large or complicated, and
2. to ease the burden on a person who is grieving and will struggle to manage the detailed administrative duties of an executor.

Contact us if you are the testator of a Will or an executor of an estate and are in need of legal advice or representation.