Probate and Executorship Query

I am a probate and conveyancing solicitor. One of my close friends (L) has an Aunt (MT) who just died, L after some pecuniary bequests is residuary legatee and she is also first named executrix with the directors of another firm who drew the will.

There is a house to convey and L has instructed me but the other solicitors are up in arms and saying they must do the conveyancing too (as well as the probate work). L is adamant she wants me to do the conveyancing. Can I insist upon acting?
Emily Deane

I think the twin starting points are that:
(a) the executors must make a joint decision to instruct anybody; and
(b) the executors must act in the best interests of the estate.

L should of course have discussed it with the professional executors before attempting to instruct you, and there may well be benefits to dealing with it all under the same roof, but I am still surprised at their attitude, particularly if she is sole residuary legatee. She can of course refuse to instruct them to handle the conveyancing but equally they can refuse to instruct you. She might ask you and them for comparative fee quotes and, if they are more expensive, it would put them in a difficult position. At the very least they must justify their position and explain why it is in the interests of the estate (ie effectively L) that they do the work.

If probate has not yet been obtained then L could still ask them to renounce - they are not obliged to do so but (according to the Law Society “Question of Ethics” May 2010) must consider what would be in the best interests of the estate and the reasons for the testator appointing them (such as the protection of the pecuniary legatees). If they are particularly difficult she might ask them to confirm that they complied with the LS Practice Note - including informing the testator that professional executors are not required (particularly for smaller estates) and providing her with an estimate of their fees for administering the estate.

Finally, she could make reference to the 2011 Code of Conduct, which is suitably vague. O(1.1) “You treat your clients fairly” can cover any number of sins. There is also arguably an “own interest conflict” under O(3.4) and while this may not have been designed to catch this situation, there are no obvious carve outs that apply.

Andrew Goodman
Osborne Clarke LLP

The solicitors acting with L clearly have a conflict of interest. They
cannot insist on their firm must be used although, as executors, can
block another being instructed unless it can be shown that such
instruction is for the overall benefit of the estate.

I have found it not an unusual practice for solicitor executors to
assert their firm is to be used for all legal work in an estate,
generally on the basis the deceased knew and trusted them.

As executors they will need to agree the appointment of any alternative,
as they will also need to satisfy any third party’s AML requirements.

At the end of the day it may come down to L proving to them that her
alternative conveyancer will do the work for a better price (although
you may find the overall cost higher if the executors effectively double
check the conveyancer’s actions).

Pragmatically, though, it might be preferable to go with the existing
solicitors, if a fixed fee can be agreed. However, that will not
prevent a complaint to The Law Society if L considers the firm to have
abused its position.

Paul Saunders

Another point, although probably not relevant here, is that a third party simply carrying out the conveyancing may not be aware of other issues affecting the property, such as CGT. I have dealt with two sets of lay executors recently who instructed different firms to deal with obtaining the grant, and the conveyancing respectively. In both cases, there were capital gains on the properties which could have been dealt with by simple appropriations to the residuary beneficiaries.

In both cases, the conveyancing solicitors were unaware of the issue and the properties were sold without any appropriation and CGT is now payable.

Susan England
Robinson Allfree