If a person (‘B’) believes that they are entitled to act as a personal representative of an estate (e.g. B believes that the deceased died intestate) and B incurs legal fees but then subsequently a Will is found which appoints a different person as a personal representative / executor, is there legal principle / precedent confirming whether B can recover their legal costs from the estate?
Presumably the firm acting for B prior to the Will being found can address the risk of the non-payment of fees by confirming to B (e.g. in the engagement letter) that B is liable for costs personally and / or on a joint and several basis with the estate?
I don’t think the engagement letter can bind the estate as under an intestacy, the authority to act is only derived from the date of the issue of the Grant of Letters of Administration and not from the date of death, as it is with an executor. If B isn’t the executor of the newly found Will, he has no authority to act in the estate This is always potentially a risk with an intestacy
I think B has to be liable to the firm for the fees personally and the firm should have advised him that this was a potential risk.
Whilst B might have no entitlement to recover any of their legal fees from the estate, they are in possession of information that would be helpful to the executor.
Might ten executor (and beneficiaries entitled under the will) be amenable to making a contribution to B’s costs in exchange for B sharing that information with them? If asset holders have amended their records to show that B is dealing with the estate, the subsequent communication from the executor, being a third party, might cause otherwise avoidable delay in gathering the details necessary to support the application for probate.
If B doesn’t ask, they’ll not know if they can at least defray some of their expense.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
A few years ago we dealt with an intestacy – not a large sum, around £50k – usual canvassing for a Will undertaken, none found, and nearest relative took LoA and acted in the estate. Fast forward 2 years and a Will came to light naming a bank / trust company as executor. It was put to the bank / trust company there was no record in the estate of the Will or their involvement in the deceased’s affairs; canvassing to find a Will had been completed and the relative had acted in good faith. The provisions of the Will differed to intestacy and in this case the bank / trust company chose to compensate those who would otherwise have inherited, with no further claim against the Administrator. The bank / trust company distributed as per the Will they held based on the estate accounts we produced which included costs.
