While it is often the case that Executors appointed in the Will are family members or friends, many people appoint a bank or a Solicitor to deal with their estate. Those carrying out this important task are, and should be accountable to beneficiaries and to their legal obligations. There are a number of situations which could give beneficiaries the right to challenge the Executors, even where it is a bank or Solicitor. It is worth remembering that there are remedies, both formal and informal to challenge any Executors not carrying out their duties properly.
The first step is to raise any concerns directly with the Executors with a view to seeking an explanation and resolving matters. Problems can arise due to misunderstandings or a failure to communicate properly, and these can often be dealt with by a discussion and agreeing a way forward with the Executor. Where it is not possible to obtain reassurance that the role is being carried out properly, or problems persist, then there are more formal legal options available in order to seek redress.
Reasons to Challenge Executors
Delay/Failure to Act
As in the case of lay Executors, professional Executors may not act diligently in performing the functions of their role. Where the bank or Solicitor is failing to carry out their role properly or at all, they should be challenged. If for example, steps are not taken quickly to locate and secure the deceased’s assets, financial loss to beneficiaries can result. The Executors may not value assets properly, fail to deal with Inheritance Tax issues accurately, not settle debts in a timely manner or otherwise fail to act in the best interests of the estate.
Although a bank or Solicitor is carrying out the role, behind the title of Executor is a person, capable of error or inaction just like any other. Where beneficiaries suspect this is the case, they can request details of the estate from the Executor, or resort to legal action if this is not provided. Applications can be made to a court to request an ‘inventory and account’, forcing the disclosure of information and documents showing the full extent of the estate.
The executor becomes insolvent or is otherwise unfit to act
An Executor can be challenged and ultimately removed if they become unable to carry out their duties or become unsuitable for the role. Again this applies to professional Executors like a bank or Solicitor and lay persons alike. This will be more common where a Solicitor is appointed. If they become unwell, are in professional or financial difficulty, then they can be removed from the role. Even a bank or Solicitor is capable of acting in their own self-interests rather than those of the beneficiaries and in those situations are open to challenge.
The bank or Solicitor is charging excessive fees
This is often a significant bone of contention and area of possible challenge for beneficiaries. Banks and Solicitors will have a ‘charging clause’ inserted in the will authorising their fees. It is sensible to ensure this is present and is valid.
While ordinary persons acting as Executors can only charge reasonable expenses in carrying out the role, a bank or Solicitor will charge fees based on the time spent carrying out their functions. These can soon mount up, especially where the estate is complicated or time-consuming and can amount a significant portion of an estate.
Where beneficiaries feel that the charges are not reasonable, then they can be challenged. Ultimately, unless agreement can be reached, this means taking legal action, and the Executors will have to show that the sums involved were actually spent (providing receipts for example), or fees were properly incurred in the administration of the estate.
Recent cases have suggested that Solicitors do not have to provide a detailed breakdown of the number of hours on an Invoice, which although unhelpful for beneficiaries does not prevent seeking justification of the charges. These costs will form part of the accounts prepared for the estate.
This can be a difficult area as there are no hard and fast rules on what evidence should be provided. Before resorting to legal action, it is sensible to discuss the issue with the bank or Solicitor Executor and seek an explanation and take professional advice on how best to proceed when such concerns arise.
It is worth remembering that in addition to their general legal responsibilities, professional Executors may be subject to a formal code of conduct. Solicitors, for example, are regulated by the SRA, and their conduct and charges can be challenged where this might be viewed as contravening their professional rules and obligations. Your Solicitor can advise you about the options available.
Some beneficiaries may feel intimidated to challenge the bank as executor (or Solicitor) . However, they have to abide by the same rules and have the same responsibilities as any other Executor. This means that proper scrutiny of their actions is entirely appropriate, and challenges should be made where there is a reason to suspect failings. It is advisable though to take professional advice before deciding on how best to tackle a bank or Solicitor Executor. If you require professional advice book a free 20 minute with a contentious probate solicitor from The Probate Network.