Many individuals choose to appoint a professional such as their solicitor, for example, as their executor. This is quite different to their executor choosing to instruct solicitors to act for them in the administration. Professional executors are appointed often in practice for a variety of reasons and can be appointed alongside family members or on their own.
Reasons for choosing a professional executor
- the individual may have no family/close friends who are capable or available to act;
- they may feel the role is too burdensome for a family member or close friend;
- they may fear disagreement if certain individuals are appointed over others;
- reasons of confidentiality;
- a way of indicating their wish for a particular firm/solicitor to be instructed in the administration of their estate; or
- they want someone independent with no personal interest to undertake this role.
Does having a professional executor result in added cost?
Professional executors will charge for their time (as they would if simply acting for the executor in the administration) but the fact that they are executor in addition to being the solicitor acting should not result in additional cost.
How can an executor be removed?
Just because someone has been appointed executor in a Will, it does not necessarily mean that they must undertake this role. In Scotland, whilst a sole executor cannot simply resign, they can appoint someone else and then resign themselves. An executor appointed with others on a joint basis has no obligation to act and can decline to do so; a document recording this will need to be signed.
However if an executor, professional or otherwise, is proving unruly and will not resign, there are options available to remove them. On an application by an interested person, the court will remove an executor if they are:
- incapable of acting due to physical or mental disability; or
- absent from the UK continuously for at least six months or have disappeared for at least six months.
With regard to the first two situations, the court must remove an executor if the position is sufficiently proven, whilst in the latter two situations, the court has discretion.
In addition, the Court of Session has general discretion to remove an executor on an application by a co-executor or beneficiary. Of course, raising such an action in court could prove costly and there is no guarantee of success.
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Should you have any questions regarding the appointment of executors or dealing with problematic executors, our Private Client specialists would be happy to help.
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