Executor in a will

[paul26may]

I wrote a will for a client of mine who named me as her executor. She was estranged from both her daughter and son and as she lived in a care home had no one to act for her. In her will there is a clause that quite clearly gives me as her executor the power to charge for any work done in the event of her death - the probate. My client passed away and I did everything that not only an executor would do but also much more besides such as attending the funeral, clearing her room and even the internment of her ashes. Her son has now issued a claim against me for the sum of the fees that I charged plus interest. He effectively believes that I should have done it all for nothing!

 

Any advice would be appreciated. The claim is for over £4,000.

[citizenB]

Did you keep all your receipts and a copy of the will.

 

Executors are allowed to reclaim their costs.

 

I will try and find someone who can help

[honeybee13]

Hello there.

 

What capacity were you acting in please? You say she was a client.

 

HB

[citizenB]

http://forums.moneysavingexpert.com/showthread.php?t=3050128

[paul26may]

Hello there.

 

What capacity were you acting in please? You say she was a client.

 

HB

 

She was a client in that I wrote her will. I am a will writer.

[honeybee13]

She was a client in that I wrote her will. I am a will writer.

 

Thank you for that. Hopefully the guys will be along later with advice for you.

 

Edit: having re-read what you said, it doesn't seem unreasonable to me that you became executor. Solicitors do that, don't they? Do you think your expenses were reasonable? I imagine you have kept a full record?

 

HB

Edited August 1, 2015 by honeybee13
Addition.

[paul26may]

Did you keep all your receipts and a copy of the will.

 

Executors are allowed to reclaim their costs.

 

I will try and find someone who can help

 

I kept everything and presented the beneficiaries with a detailed account of everything I did and how much it cost. As i said in my original post the will contained this clause:

 

Trustee Powers

.

.

7. I Declare that any Trustees hereof being a Solicitor an Accountant or any other person engaged in any profession or business or trade shall be entitled to be paid all the usual professional business and trade charges for business transacted time expended and acts done by him or any employee or partner of his in connection with the trusts hereof including acts which a Trustee not being in any profession business or trade could have done personally

[caro]

Is there any room for negotiation to avoid court and possibly a CCJ?

[paul26may]

Thank you for that. Hopefully the guys will be along later with advice for you.

 

Edit: having re-read what you said, it doesn't seem unreasonable to me that you became executor. Solicitors do that, don't they? Do you think your expenses were reasonable? I imagine you have kept a full record?

 

HB

 

If I hadn't volunteered to be the executor there wouldn't have been a will and she would have probably died intestate. My expenses covered all the usual executor duties and much more besides and yes I have kept everything.

[paul26may]

Is there any room for negotiation to avoid court and possibly a CCJ?

 

I am prepared to negotiate but I am pretty damn sure the claimant isn't. Why should I any way? I was the executor and I had a right to charge fees for work done. I'm not a charity and have to earn a living like everyone else. A very learned friend of mine who is in the same line of work and whom I will be contacting next week believes that the claimant and his solicitor are 'p*ssing in the wind'!

[citizenB]

I would think that as long as you have kept all your receipts then the claimant probably will have a very hard time with the claim.

[steampowered]

The will provision talks about 'usual professional charges'. You might have a problem recovering anything if you are an amateur that doesn't normally do this sort of thing. But if you do it professionally and you have 'usual' charges than it would seem the will clearly provides for that.

[CrappoMan]

Read the last sentence again:

 

...including acts which a Trustee not being in any profession business or trade could have done personally

 

That means an amateur can charge for things he does personally.

[steampowered]

Read the last sentence again:

 

...including acts which a Trustee not being in any profession business or trade could have done personally

 

That means an amateur can charge for things he does personally.

My interpretation is slightly different. I think that sentence is referring to the nature of the acts which the trustee is entitled to charge for; rather than whether or not a trustee is entitled to charge. I read that clause as clarifying, for example, that a solicitor could still charge for non-legal work such as tracking down beneficiaries.

 

My reading of the clause is that the operative words appear at the beginning, in that the clause only covers 'any Trustees hereof being a Solicitor an Accountant or any other person engaged in any profession or business or trade shall be entitled to be paid all the usual professional business and trade charges'

[estellyn]

My interpretation is slightly different. I think that sentence is referring to the nature of the acts which the trustee is entitled to charge for; rather than whether or not a trustee is entitled to charge. I read that clause as clarifying, for example, that a solicitor could still charge for non-legal work such as tracking down beneficiaries.

 

My reading of the clause is that the operative words appear at the beginning, in that the clause only covers 'any Trustees hereof being a Solicitor an Accountant or any other person engaged in any profession or business or trade shall be entitled to be paid all the usual professional business and trade charges'

 

He's a will writer, was engaged to act as executor by his client, therefore he was doing this as part of his business. Just because it is the first time he's done it, doesn't mean that it can't still be his business or trade. After all the trauma he may decide not to ever do it again or he may decide to offer it as a service to clients. I think the point is that he was engaged in his trade, and was asked to the this work as an extension of that trade, I don't see a problem.

[steampowered]

He's a will writer, was engaged to act as executor by his client, therefore he was doing this as part of his business. Just because it is the first time he's done it, doesn't mean that it can't still be his business or trade. After all the trauma he may decide not to ever do it again or he may decide to offer it as a service to clients. I think the point is that he was engaged in his trade, and was asked to the this work as an extension of that trade, I don't see a problem.

I completely agree. I am just thinking about how the other side might be trying to portray this.

 

If I was acting for the other side, I would cross-examine the op in court and would ask questions like 'are you a professional executor?' 'your normal professional role extends to will writing only, correct?' 'how many times have you done this before?' 'what are your usual professional charges - how can you say they are your 'usual' charges within the meaning of the will if this is the first time you have done this?'

[CrappoMan]

My interpretation is slightly different. I think that sentence is referring to the nature of the acts which the trustee is entitled to charge for; rather than whether or not a trustee is entitled to charge. I read that clause as clarifying, for example, that a solicitor could still charge for non-legal work such as tracking down beneficiaries.

 

My reading of the clause is that the operative words appear at the beginning, in that the clause only covers 'any Trustees hereof being a Solicitor an Accountant or any other person engaged in any profession or business or trade shall be entitled to be paid all the usual professional business and trade charges'

 

You may be right, but either way you are allowed to recover expenses incurred while administering an estate. It's called 'testamentary expenses'. I administered my late fathers estate and charged the estate for expenses incurred, including death certificate and probate certificate costs, house cleaning, postage, etc. It didn't come to anywhere near £4k though. The high (imo) value he charged may have something to do with it, but as long as he has kept proper receipts he should be fine.

[steampowered]

You may be right, but either way you are allowed to recover expenses incurred while administering an estate. It's called 'testamentary expenses'. I administered my late fathers estate and charged the estate for expenses incurred, including death certificate and probate certificate costs, house cleaning, postage, etc. It didn't come to anywhere near £4k though. The high (imo) value he charged may have something to do with it, but as long as he has kept proper receipts he should be fine.

Yes, but the right to recover testamentary expenses is a statutory right which comes from the Administration of Estates Act 1925. That right only covers expenses incurred by the executor and not fees charged by the executor. For example, if the Op had instructed a solicitor to help him deal with the estate, the fees of that solicitor would have been an allowable expense under the Act; but as the op wants to recover his own fees he cannot rely on the Act.

 

For the executor to recover fees, my understanding is that this requires specific wording in the will to allow for that. That is why banks/solicitors will refuse to act as executor if appropriate wording is not included to allow them to recover their costs. For this reason I think it is crucial for the Op to prove that he was acting in the course of his 'profession or business or trade' and that the 4k was his 'usual professional charges'. On balance it sounds like that this test is probably met, but it does sound a little bit ambiguous to me.

[CrappoMan]

Have had a quick look and you may be right. I found this:

Reimbursement for expenses

 

PRs are entitled to reimburse themselves for reasonable expenses incurred in the execution of their duties. A personal representative who acts in a professional capacity is entitled to receive reasonable remuneration out of the estate for any services that he provides to or on behalf of the estate (even if they are services which are capable of being provided by a lay personal representative) if each of the other personal representatives has agreed in writing that he may be remunerated for his services.

This agrees with what you said, and it sounds absolutely barmy. Why should only a professional person be able to be reimbursed for their time ? If a lay person does the same action they are expected to give their time for free ? Crazy!

[steampowered]

I guess the counter-argument would be that professionals are regulated. If a solicitor screws up the administration of an estate, you can complain to the Legal Ombudsman. The solicitor will also be fully insured. There are also controls regarding how much it would be reasonable for a solicitor to charge - there are guideline hourly rates, and you can ask the court to assess a solicitor's bill if you think it is unreasonable.

 

You don't get any of that protection with a non-professional. I would think that in theory a non-professional could be reimbursed for their time but that would have to be clearly stated in the will.

[AndyOrch]

" In her will there is a clause that quite clearly gives me as her executor the power to charge for any work done in the event of her death - the probate "

[caro]

I guess the counter-argument would be that professionals are regulated. If a solicitor screws up the administration of an estate, you can complain to the Legal Ombudsman. The solicitor will also be fully insured. There are also controls regarding how much it would be reasonable for a solicitor to charge - there are guideline hourly rates, and you can ask the court to assess a solicitor's bill if you think it is unreasonable.

 

You don't get any of that protection with a non-professional. I would think that in theory a non-professional could be reimbursed for their time but that would have to be clearly stated in the will.

 

Unfortunately will writers are not regulated so it's difficult when there are problems.