The executors and beneficiaries are not obliged to use the named professional executor’s firm to carry out any of the grant of probate or estate administration, and quite often is it the case that the professional executor’s fees are too expensive.
Sometimes a testator will name a professional executor in their will – not a family member but (for example) a solicitor, bank or other financial institution. On occasion, there may be a valid reason for this – for example, if there is some conflict between the beneficiaries, or the testator had used the firm for a long time and trusts the staff’s knowledge of their affairs. Often there is not any particular reason, and the professional executor is named following a suggestion from the firm writing the will at the time to include one of their solicitors as an executor. One of the reasons the firm will suggest this is to ensure that, when the time comes, they will be able to charge for any work carried out in the role of executor and secure the work relating to the grant of probate and estate administration. This leaves the family facing additional legal fees and feeling as though they have no choice at all as to which firm deals with the required work.
There are options available to those in such a situation who wish to choose which law firm deals with the deceased’s estate and not have the professional executor involved in the estate administration.
Leaving the Professional Executor in situ
The first option is to leave the professional executor in situ with no reserved powers and use another law firm to carry out the grant of probate and estate administration work. If the professional executor remains in place, she/he is highly likely to charge for any work carried out in their role as executor.
All the other executors/beneficiaries would have to do is write a short letter/email to the professional executor advising them that another law firm will be undertaking the work relating to the deceased’s estate. Oratto can provide you with a letter, free of charge, for you to use for this purpose.
The beneficiaries can request that an executor reserve power on their executor duties, allowing the remaining executors free to apply for probate and carry out the related duties without the involvement of the professional executor.
All that is required from the professional executor is a short letter to the probate registry – stating that they are not applying for probate but wish to retain power of preservation – and their details entered in section 6a of form PA (application for grant of probate).
An executor who has reserved power is not usually involved in the estate administration and paperwork but can (if required) still be involved in any necessary decision-making.
The remaining executors (or next of kin) are free to obtain the grant of probate, and it is their written authority that will be required to deal with the sale or transfer of bank accounts, investments and other assets, and it is their responsibility to pay all debts, liabilities and taxes.
Oratto can provide you with a draft letter (if you chose to use an Oratto member lawyer for your case) for your use to request the professional executor reserve their powers.
Renunciation of Probate
The beneficiaries can request that a professional executor formally and legally renounce his or her duties as executor by submitting a Renunciation of Probate form to court – this then leaves the remaining executors to carry out the related duties.
While professional executors are only “obliged” to consider the request to renounce probate, it is likely that professional executors would rather renounce than attempt to work with a group of beneficiaries who do not support the decision made by the deceased in respect of the executors, and where the beneficiaries do not value the service provided by the professional executors. All the beneficiaries must agree that the professional executor should renounce, and a short letter signed by all is required to request renunciation. As part of your Oratto service, we can provide you with a letter to use for this purpose.
It is important that the renouncement request is made before the professional executor undertakes any work on the estate. If work has begun, then she/he is deemed to have “intermeddled” and cannot renounce without the appropriate court order.
If a professional executor agrees to renounce, then a Renunciation of Probate must be drawn up – this can cost the client anything from £180 - £350 (which is recoverable from the estate). It may be argued that this fee is not a reasonable administrative fee but more a penalty to deter a lay executor from instructing another firm. The SRA has previously advised solicitors that a fee of more than £50 is unreasonable.
Oratto can provide you (as part of your service) with a draft letter requesting the solicitor renounces, and a draft Renunciation of Probate for the professional executor to sign to avoid them charging you for drawing up the renunciation.
Whichever option you decide is the right one for you, Oratto and your chosen law firm will support you every step of the way. If you would like to discuss these options to help you decide which one is best for you and your family, please call our National Helpline on 01243 850603.