Can a solicitor be an executor of a will?
You can nominate your solicitor to be the paid executor of your Will.
On your death, your executor obtains Probate or may also be required to hold some assets in trust for certain beneficiaries, with distribution to them, on their attaining a certain age. When all distributions are done, the “administration of the estate” is complete.
The Australian Solicitors’ Conduct Rules are the non-negotiable Rules that all solicitors sign up to, for the purposes of being granted a licence to practice law. They overrule any legislation that might suggest that a solicitor has the power to do something contrary to those Rules.
Rule 12 of The Australian Solicitors’ Conduct Rules permits your solicitor, or his successor in his practice, to be the executor of your Will and its administration, and charge fees to your estate for so doing, but he must first write you a letter making relevant cost disclosures.
Rule 12 is an exception to the well-established fiduciary duty that a solicitor must not act for a client where there is a conflict between the duty to serve the best interest of the client, and the interests of the solicitor or his firm.
Where Will makers have appointed their solicitor as executor, it is usual that they ask their solicitor to insert a clause in the will stating that it is the will maker’s ‘preference’ that the solicitor’s law firm act on all legal matters in the administration of the estate pursuant to the executorship of the solicitor. (We believe it is unethical for a solicitor to have a will maker state in a will prepared by a solicitor that the will maker “Directs” that the solicitor’s law firm act for all legal matters in the administration of the estate.)
Can your solicitor act as a paid Trustee of a Testamentary Trust/s in your Will?
Rule 12 of The Australian Solicitors’ Conduct Rules does not mention, as an exception to it, your solicitor acting as a trustee of a Trust (a Testamentary Trust), for the ongoing benefit of a beneficiary/s, specifically established and enlivened by way of the executor’s administration of your Will.
Rule 12, therefore, does not permit your solicitor being paid to so do and/or having his/her law firm being paid for legal services rendered on behalf of the Trust (irrespective of whether he/she writes you a costs disclosure letter or not.)
In our view, this is because Trusts are subject to the Law of Perpetuities, meaning that most Trusts can last for long periods of time, up to 80 years.
If your solicitor and his/her law firm were permitted to perform these paid roles, it would mean, in effect, that one law firm could potentially act ‘forever’ for your Trust, after you die.
This may not only be against the wishes of beneficiaries of your will, but also would effectively guarantee the solicitor and his/her law firm ongoing legal fees from your estate.
We believe that this is not only contrary to the Solicitors’ Conduct Rules, but is also unethical and against public policy for solicitors, who are officers of the Supreme Court, to allow themselves to be put in such a position of on-going benefit from your estate.
However, if your solicitor is not appointed as Trustee, there is nothing preventing you from saying in your Will that it is your ‘preference’ that your solicitor’s law firm acts in relation to legal matters pertaining to the Trust/s created under your Will. (Again, we believe it is unethical for a solicitor to have a will maker state in a Will prepared by a solicitor that the will maker “Directs” that the solicitor’s law firm act for all ongoing legal matters in relation to the Trust established under the Will.)
If you wish any further information, please call our Principal- Jim Wilson on 07 55363055 ext 4