Charging - Non-Professional Trustee and Executor

I am dealing with a Will that includes a charging clause permitting non-professional executor/trustee to charge for their time spent dealing with the administration and ongoing trust. Does anyone know if there is a specific procedure or guidance to determine how the non-professional is to charge?

Laura Willis
MLP Law

I’m not aware of any specific procedure and the way forward may depend upon a number of circumstances.

  1.  Is the charging clause completely unfettered, or does it only allow a trustee, say, who is a businessman to be remunerated?  Whilst this would allow, say, a self-employed plumber to charge, it would likely exclude an employee of a business, or someone who is not employed.
    
  2.  If the non-professional is sole trustee, they might need to agree their charges with the beneficiaries, to avoid potential later claims that their fees are “unreasonable”.  This could e more difficult if the beneficiaries are not all ascertainable and of age
    
  3.  Where the trustee in question is one of a number of trustees, the amount they claim must be agreed by all the trustees on the basis that the act of payment is not merely administrative and the trustees must act unanimously.
    

There are undoubtedly other variations that might need to be considered, but I believe the above are the more common ones that are likely to arise.

Paul Saunders

1 Like

I recall checking this some years ago, and believe that I could not find a
definitive answer, but most advice centred on the specific wording of the
charging clause and the specific details of the executor concerned. In
particular, clauses based on “normal” solicitor precedents probably make
some reference to “all usual professional or other charges …… including
acts which an Executor or Trustee not being in any profession or business
could have done personally”.
Does that mean simply that a solicitor, accountant etc can charge for all
their time, but leave a plumber [say] unable to charge at all as it is not
usual for him/her to do so?
As Paul says, if the basis of any charge can be agreed in advance with the
beneficiaries, that would be the preferred option.

Kevin Mullen