
Navigating executor roles: best practices for professional executors in legacy administration

By Gavin Holt
30 Jul 2024 | 4 minute read
Our article explores the role of professional executors in estate administration, focusing on their rights to renounce and the potential conflicts that can arise with charitable beneficiaries. We delve into scenarios where professional executors may feel compelled to act against beneficiaries' wishes and provide guidance on when it might be appropriate for them to step aside.
Navigating executor roles - when to act and when to renounce
Charities will know from their legacy administration work that it is common for wills to appoint professional executors. This usually causes no difficulty. The professional executor obtains a grant of probate, administers the estate, and then accounts to the charitable beneficiaries for their entitlements under the will in the usual way.
The basic position is that executors – whether professional or otherwise – are entitled to act in the administration of the estate if they wish to. Equally, they do not have to act. They can renounce. Difficulties can arise where there are differences of opinion around whether the professional executor should act.
In a charity context, a typical scenario would be where charity residuary beneficiaries have reservations about a professional executor's involvement – perhaps based on costs concerns, or even past experience – and would rather act as personal representative themselves and perhaps instruct one of their trusted firms to support them with the administration.
Professional executors would be well-advised to avoid situations that will place them at odds with the beneficiaries from the outset. It does not make for a harmonious estate administration. On that basis, when faced with a unanimous request from the residuary beneficiaries, most professional executors would, sensibly, give serious consideration to renouncing.
There is another side to this though. If the professional executor has been appointed for a specific reason, then they might feel a moral obligation to act even in the face of disagreement from the residuary beneficiaries.
A good example of this would be where the estate is complicated and the professional executor has detailed historic knowledge of the situation, perhaps having worked with the deceased on their lifetime affairs for many years. Another would be where the deceased knew that their wishes might lead to a dispute, and, for that reason, wanted an independent professional to have control of the administration of the estate from the outset. In both of those scenarios, it may be reasonable for the professional executor to insist on acting even against the wishes of one or more of the beneficiaries.
Balancing the interests of professional executors and charitable beneficiaries
Most estates are not like those described above though. In more straightforward situations, it might be difficult for professional executors to justify insisting to act. It is, to an extent, a regulatory matter. The Law Society has published guidance, the theme of which is that professional executors should act reasonably and take into account the reasons why they were appointed, the circumstances of the estate (and whether those circumstances have changed since the will was made) and, most importantly, what is in the best interests of the estate and its beneficiaries.
This guidance technically only applies to professionals regulated by the SRA, i.e. firms of solicitors, but other professional bodies such as STEP may take a similar approach in the event of a complaint about a member's conduct. Interestingly, the Institute of Professional Willwriters' code of practice goes a step further and states that members must renounce if requested to do so by the residuary beneficiaries.
In the much-publicised case of Richman v WAG Davidson & Co Solicitors [2020], a disagreement of this nature was addressed by the High Court. The deceased's family were successful in having the professional executor removed, with the judge stating that the executor had sought to "cling onto office when it is perfectly obvious that they should not do so".
Not only that, but the (former) professional executor was ordered to pay the family's costs of over £25,000. Whilst court action is never something to be taken lightly, this is perhaps to be taken as a warning of the potential implications of insisting on acting when it is not reasonable to do so. The case illustrates that, whilst the starting point remains that a professional executor is entitled to act if they wish to, this principle is not without its limits, and the court will intervene if the circumstances so warrant. The complaint route depends – to an extent – on regulation and codes of practice, whereas the court route would be available even where a professional executor is not subject to any formal professional conduct rules.
Charities deal daily with professionals from all across the spectrum – both regulated and non-regulated – and legacy officers & managers are good at maintaining positive relationships with those professionals wherever possible. This is of course not to be discouraged, but, if faced with a situation where they would prefer for a professional executor to renounce, charities should feel empowered to pursue this, provided they act reasonably in doing so.
Final thoughts - legal and ethical considerations for professional executors in estate administration
In closing, a question that often arises is whether a professional executor can charge for the act of renouncing. There is no concrete answer to that question, as it can present contractual difficulties, so it is best approached with pragmatism. If the person or charity wishing to take over (or their advisers) prepare the deed of renunciation, such that all the professional executor has to do is execute the document, then it's possible that any fee at all (unless very small indeed e.g. under £100) would be considered unreasonable. If, conversely, the professional executor prepares the deed of renunciation themselves, then that would perhaps justify a small fee. Whilst it is not for us to determine what represents a reasonable fee for renouncing, it is our view that anything exceeding the low hundreds of pounds would likely be considered unreasonable should the matter ever find its way to a regulator or a court.