I drove back to the office feeling perplexed. On returning to my desk I remembered that I had read an article in the Sunday Times on 4 November about professional Executors’ fees being ‘crippling’, ‘exorbitant’ and ‘stripping’ estates and went back to read the comments section on the online version of the article and a response written by a fellow Solicitors for the Elderly member which had been published to LinkedIn.
It seems like each month a different profession is criticised and vilified, and November 2017 was the turn of the private client lawyer.
So should people appoint professional Executors?
In a Will meeting, I find that clients often ask "Do I have to appoint a professional Executor?" My answer to that would, obviously be "no". If the question were "Should I appoint a professional Executor?" my answer would entirely depend on the client's personal circumstances. There are in fact many reasons why clients approach trusted professionals such as Solicitors and Accountants to expressly request them to act as their Executors and deal with their affairs after their deaths. The reasons why clients want to employ professional Executors differ in each case but some common trends are outlined below.
One of the most frequently given reasons is that clients wish to allow their family to grieve rather than to be burdened with the responsibility of administering the financial affairs of a deceased loved one. Some of us are not natural organisers and don't cope well in a crisis. It can be of great comfort for a Testator, especially, I find, ones who are already ill and have gauged that their families are going to struggle with loss, to be able to nominate a professional to relieve the family of what they predict will be an unwelcome burden at a stressful and emotional time.
Sometimes clients appoint professional Executors because they are accustomed to delegating their complex affairs and have lifelong (or career long) relationships with their advisors. Complex affairs can mean cross-border matters (such as domicile or overseas assets), can be in terms of tax (whether it be the taxation of an individual or an individual’s interest in a business) or because of the need to ensure that a business will continue to operate post the death of a key member. Professional advisers can be best placed to act as Executors in these circumstances.
On a similar vein, if a Testator is aware that their (non-professional) Executors will need to appoint professionals to provide advice, a Testator ensures that their own choice of professional is instructed when they appoint their own professional Executor. This can be an important motivator.
If a Testator’s affairs are less complex on the whole but there is an area of complexity for which a Testator has always sought advice, professional Executors can be appointed to deal with these matters, with the remainder of the deceased’s affairs being left for the family to manage. Typical examples of this restricted Executor role involve Executors appointed specifically to deal with digital assets, literary estate, intellectual property and/or assets abroad. Testators can also appoint separate Executors to take over, on their death, the administration of an estate for which they themselves are acting as an Executor.
Where a Trust is involved, a Testator will often opt to have a professional Executor (and Trustee). There may be ongoing Family Trusts or Trusts for minors or vulnerable beneficiaries (which can continue long after the remainder of the estate has been settled). Many Trusts are simple and require little professional input but where matters are more involved, a professional Trustee in the form of a Trust corporation can assist with longevity and continuity.
Whether an estate is complex or not, if a Testator knows that there is likely to be conflict following their death, a professional Executor can be appointed to act as an impartial or neutral party. A professional Executor can make decisions objectively and at a necessary distance from emotional complications. Families can have long-standing disputes or a Testator may be aware that a dispute is likely to arise on their death, whether in relation to 1975 Act claims, claims of lack of capacity, undue influence or because, for example, an Executor has been directed to take an action under the terms of the Will that is likely to prove unpopular.
When professionals agree to be Executors, Trustees, Guardians, Attorneys or Deputies we are providing a service. It is a service for which we charge, of course, but it is a service which many clients are willing to pay for and which many bereaved families find invaluable.
The content of this article is for general information only. Law covered as at November 2017.