Being appointed the executor of a friend or family member's will is a privilege, but it is also a big responsibility. Most executors will require legal assistance to administer the estate and it can be challenging knowing where to start when it comes to appointing a lawyer.
Your loved one may have left a will, prepared for them by a particular lawyer. That firm's logo will likely be on the front cover, and their trustee company may even be appointed as a fall-back executor. Many executors naturally gravitate towards this same lawyer and appoint them to administer the estate. It is important to know that you are by no means obliged to instruct that firm to administer the estate. As an executor, you are the client, so pick a firm that works for you.
To help you start the process, here are our top ten things for executors of a will to keep in mind when appointing a lawyer:
1. Scots Law qualified
The law relating to executives and inheritance in Scotland is unique from that in England and Wales. Be sure to instruct a lawyer that is qualified in Scots Law, even if you aren’t based in Scotland. Brodies works with executry clients all over the world and can, if required, conduct all client meetings remotely.
2. Expertise in executries
The lawyer who sold your house might not be best placed to administer an estate. Look for a firm that specialises in wills and executries, succession law or private client work.
3. Reputation
Ask friends and family members if they have ever been an executor, and whether they would recommend the lawyer they worked with. Your funeral director may also have a referral service or be able to recommend a firm with expertise in this area. Once you have some recommendations, check out the firm’s client testimonials or consult the Legal 500 directory, which will tell you the best rated firms and lawyers in the field.
4. Understanding of the assets
Consider your loved one’s assets and identify anything special or unusual, such as a farm, a business, or an art collection. Firms like Brodies have lawyers that specialise in complex and unique estates and will be able to offer you bespoke advice in relation to managing these assets and applying for any relevant tax reliefs.
5. Fees with a service level to match
Your lawyer should be able to give you an indication as to the price or show you a fee structure indicating what the total will likely be. Make sure your lawyer highlights any additional costs, such as court fees and outlays (which is legal speak for expenses). Once you have agreed the fee, make sure the level of service meets your expectations.
Some lawyers may draw a client in with a low price, but then expect the executors to undertake the bulk of the administration themselves, which can be extremely overwhelming. Brodies specialises in comprehensive executry administration, whereby our lawyers make all the calls and enquiries on the executor’s behalf. This level of services takes the pressure off the executor and ensures that the right people are contacted, the appropriate information is sourced and presented to the court.
6. Realistic timescales
Executry administration is not a quick process. At present, it is very typical for the administration of a simple estate to take between eight and 12 months. Be sure that your lawyer gives you open and honest timescales in respect of each stage of the executry process.
7. Highlights the risks
Being an executor isn't risk-free. There are instances when an executor may become personally liable for the debts of the estate, for example if they make distributions to beneficiaries within the first six months; or if they fail to declare an estate as insolvent. There also might be challenges to the estate by potential legal rights claimants. A good lawyer will advise you upfront of the risks involved and take measures to ensure these are mitigated.
8. Talks tax
Your lawyer should be able to assess whether any inheritance tax is payable by the estate, and the level of reporting required. Inheritance can also lead to unexpected income or capital gains tax falling due by beneficiaries. Your lawyer should understand the taxes involved and be able to offer you advice on how to mitigate these. If tax is an issue, you may prefer to instruct a firm with their own dedicated tax department and chartered accountants on staff.
9. Covers all bases
Executries rarely stand in isolation – there might be a house to sell, a trust to establish or even a guardianship order to put in place. A multi-discipline law firm like Brodies will be able to manage the various components of the estate, saving the executors time, stress, and money.
10. Trustworthiness
Your lawyer will be reviewing your loved one's financial details and will be liaising with the court and HMRC on your behalf, just as your loved one entrusted you to be executor, choose a lawyer that you can trust to help you carry out their wishes.
If you are an executor looking for legal advice, then please contact our dedicated executries team. One of our lawyers would be pleased to arrange an initial meeting to discuss the services we offer and help you navigate this challenging process.
Contributor
Senior Solicitor
