An executor is a person appointed to carry out the instructions in your Will after you die. As your legal personal representative, they have many responsibilities including identifying and protecting your assets, collecting and paying debts, applying for probate and distributing your assets to the beneficiaries named in your Will. If there is an estate dispute, your executor will need to deal with the dispute.
In general, you can appoint any person as executor of your Will, and this includes a lawyer. It is not uncommon for a lawyer to be appointed executor of a Will. The advantage of having a lawyer as an executor is their knowledge of succession law, and experience in interpreting Wills and administering estates, as opposed to someone who has never undertaken the role of an executor.
It is also quite likely that whomever you appoint as the executor will have to seek advice from a solicitor while acting as executor anyway.
Why Would I Appoint a Lawyer as Executor of my Will?
If you have a complicated estate and/or complex family dynamics, it may be worth considering appointing a lawyer as executor of your Will. Lawyers bring professionalism and experience to the role of executor and can remain impartial should disputes arise between the deceased’s family members.
Using their knowledge of estate law, an experienced lawyer will ensure that the provisions in the Will are carried out properly and will communicate efficiently with beneficiaries, keeping them informed of the progress of managing the estate. As professionals, lawyers are generally proficient in dealing with third parties, keeping good written records and ensuring that accounts are properly maintained.
Furthermore, some people may not have the capacity or inclination to deal with the legal and financial affairs after a loved one passes, so the appointment of a lawyer as executor might make sense in such circumstances.
Can Lawyers Charge for Executing a Will?
Yes, they can. A charging clause in the Will can provide that the lawyer is remunerated for carrying out the legal work in relation to obtaining probate and administering the estate. The Will may also include a clause providing for the executor to be paid a commission for work of a non-professional nature. A lawyer must obtain permission from the Court for the payment of this commission.
Lawyers acting as executors of a Will must ensure they comply with Legal Profession Uniform Rules when renumerating themselves for executing the Will. They must clearly distinguish between professional work for which they may charge legal fees and non-professional (executorial) work for which they may be paid commission but not charge legal fees.
What is Required from a Lawyer who is to Become Executor of my Will?
If you decide to appoint a lawyer as executor of your Will and before you sign the Will, your lawyer should notify you in writing:
- of any entitlement they may have to claim an executor’s commission
- of the inclusion of any provision in the Will entitling them to charge legal costs for administering the estate
- if there is an entitlement in the Will for them to claim commission, that you could appoint someone else as executor who might make no claim for executor’s commission
Conclusion
An experienced lawyer can bring professionalism and impartiality to the role of executor. If a lawyer has accepted to take on the role of executor of your Will, they must adhere to strict rules and explain the different ways in which they can be renumerated for carrying out your final wishes.
This area of law is extensive and can be overwhelming to understand. We recommend you speak with one of our lawyers who can ensure you have everything in order when it comes to making your Will.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (02) 4987 3344 or email [email protected].