Showing your quality

May 2, 2013 2:45 pm Published by

Showing your quality

With many people now handling probate without the support of a solicitor, we need to make sure that, when we are appointed as an executor, we work hard to add value and retain the role, including where complexities arise due to the firm converting to LLP

says John Riddett

John Riddett is a solicitor and notary at Blocks in Ipswich, Suffolk, specialising in providing advice to the elderly.

As more people access online the information they need to deal with complex problems, tasks that were once almost automatically entrusted to a solicitor are now being tackled by people who are confident of being able to deal with that task for themselves. Among other things, this may mean that we will only be asked to get involved in probate cases where there are complications, such as potential capacity issues or a need to amend a will to reflect changed personal circumstances.

We should therefore expect that only a certain type of client will appoint us as executors. The obvious ones include clients who:

  • are unmarried with no close relatives;
  • have substantial assets where inheritance tax (IHT) will be payable;
  • have complicated family trees (such as children from current and previous marriage) and feel that none of their family members will be able to administer the estate properly; or
  • have provided for a trust to be created by their will, and feel it would be unfair to expect their family to undertake the task.

If we are asked to be executors by such clients – or any others – we need to make sure that our appointment is valid. If the firm is a traditional partnership, a testator can appoint either named solicitors, or the partners in the firm at the date of death. However, if the firm has converted to a limited liability partnership (LLP), then the case of Rogers, Re In the Estate of [2006] EWHC 753 (Ch) enables us to submit the application for probate on the basis that the partners have become members of the LLP.

But it is not clear if Rogers will apply where the firm not only converts to an LLP, but also creates a further tier, whereby the former partners as individuals are employed by a company that itself is a member of the LLP. I wrote to the Ipswich District Probate Registrar seeking advice, and this is the reply I received:

“It would depend on if the partners in the firm (or members in the LLP) have all, since the dates of the wills in question, become limited companies.

“If they have, and there are no individuals named as executors alongside the firm / LLP, the directors of the limited companies may be able to apply for letters of administration with will annexed as nominees of their parent company, such parent company presumably being a non-trust corporation whose memorandum and articles of association must confirm that the company has power under its constitution to apply for such a grant.

“For the avoidance of doubt, any appointment of the firm / LLP or partners / members therein as executors fails (as only a named individual or a trust corporation is entitled to probate), but the above mentioned procedure has been used by many firms locally and nationally as a way of preserving the “professional” grantee as the testator intended.

“If the structure of any of the firms is more complex than stated herein I would need further details from the firm itself in order to ascertain entitlement to the grant.”

If Rogers does not apply, the members have three choices, each of which allows some scope for retaining the case by demonstrating to the client that they can add value to the outcome (for example, by reducing the IHT bill).

First, they could accept that the appointment of the firm will be void for uncertainty. This might be the only option where, for example, the testator has lost capacity to execute a new will. It may be possible to retain the case by either acting for the residuary beneficiaries directly, or by suggesting they appoint two individual solicitors to act as their attorneys.

Second, they could contact the clients affected and explain that their wills need to be amended (at no cost to them), perhaps also suggesting that they consider executing a lasting power of attorney or ‘living will’, or reviewing the provisions of their will for IHT purposes or to avoid assets being used to pay care home fees.

Third, they could revert to the old practice of appointing named individuals. The problem here is, of course, that those named may not, at the date of death, be employed by the LLP. This may be overcome if, in solicitors’ contract of employment, you insert a clause requiring them, on leaving the LLP, to either renounce or execute a power of attorney so that another member of the LLP can take on the administration, remembering that only the executors named in the will can apply for a grant of probate. Every other application will have to made by administrators. You cannot have a hybrid application with one executor and one administrator.

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