Should solicitors be executors? In the writer’s view, solicitors should not seek such appointments and accept them only where the circumstances justify the need for a solicitor/executor. Those circumstances may include:
- the client has no close friends or family and wishes the estate to pass to charities;
- the assets of the client are in Australia, with the client’s only child living overseas, and asking the family’s solicitor to act as executor;
- where the client has no surviving family, and wishes to provide for a number of friends living around Australia; and
- an independent executor is considered essential due to the client’s dysfunctional family.
Before a solicitor is ever considered, clients should explore familial and friendship options. Lack of experience should not be seen as a bar to the appointment of family or friends. The key requirements are always common sense and integrity. With those qualities, and engaging and following the advice of a solicitor, satisfactory administration of the estate should result.
While touching on the requirements for an appropriate executor appointment, age and health are also relevant. If the appointment of two executors is being considered, they should be people who ‘get on’. If two siblings have always had a fractious relationship, appointing them to the role is not recommended as a strategy to healing the rift and making them work cooperatively to ‘get the job done’. Such wishful thinking is most likely to add considerably to the costs and time involved in the estate’s administration.
It should be stressed that it is not unprofessional or unethical for a solicitor to accept an appointment as executor. However, the Australian Solicitors Conduct Rules prescribe special requirements to be followed before the appointment is made. A letter must be given to the will-maker addressing the costs and solicitor’s commission that might not be payable if family or friends are appointed. This requirement will also apply where a codicil is made to the will or another will is proposed (where the solicitor’s appointment will continue).
Whoever is acting as executor, there are three approaches to the performance of the role that are important to the trouble-free performance of it:
- Attend to the duties in a timely fashion;
- Keep the beneficiaries informed of the progress of the administration of the estate; and
- Ensure transparency in accounting to beneficiaries on the financial aspects of the estate’s administration.
Conferring with beneficiaries on decisions to be taken that might impact their interests will generally be appropriate but ultimately, executors should be guided by the principle that they must act in the best interests of the estate’s administration as a whole. For example, an asset specifically gifted to a beneficiary may need to be sold to pay debts. Conferring with the beneficiary concerned may result in a decision by the beneficiary to pay the debts so that the assets can be distributed to him or her. Equally, the beneficiary may not be concerned that the asset is sold – it may have been the beneficiary’s intention to sell it immediately it was distributed to her or him.
Like most relationships, the key to success is good quality communication. It can be particularly important in the case of an executor where there are likely to be a range of ‘stakeholders’, primary among them being the beneficiaries. Keeping creditors on side can be equally important in administering any estate.
Finally, litigation should be avoided if at all possible, and if it is to be embarked upon, should have the court’s imprimatur.
Following the approaches referred to should result in a time and cost-efficient administration of the estate, whether or not the executor is a solicitor.
Dr John de Groot,
Special Counsel
