In our previous blogs we discussed whether professional executors are required, and what the role of executor entails].  In difficult estates i.e. complex, high value estates containing business or foreign assets, where there is a dispute of the estate, estates involving trust structures, or estates where the documents are unclear, lay executors may find themselves at a loss as to what to do, but not necessarily wanting to relinquish their role.  In those circumstances, executors should consider taking professional advice.

Trustees (and therefore executors) are entitled to delegate to an appropriately qualified person. This means that you are entitled to use the estate's funds to pay for advice as to how the estate should be distributed. This may mean taking advice from a barrister on specific issues, or instructing a solicitor to undertake the probate process on your behalf and under your instruction.

A professional will guide the executors through the process, and can help ensure that the estate is administered as quickly and tax efficiently as possible.  Given executors’ personal liability if they incorrectly administer the estate, having professional advice can be invaluable.  Take the case of Usher v HMRC in which the executors of the estate failed to take legal advice, and consequently failed to follow the correct procedure in administering the estate.  The result was that the estate did not pay its income tax correctly, resulting in penalties and fees for which the executors were personally liable.  The court commented in that case that the executors should have taken advice, and that had they done so and the correct procedure been followed, they would not have been responsible for any tax payable which would have been paid from the estate.

Whilst taking professional advice would not always be a defence to any claim that an executor had breached their duties, it may help persuade the court that the executor had acted reasonably.  The executor may also benefit from being able to recover any loss against a solicitor who wrongly advised and caused them to breach their duties, by pursuing a claim in negligence or breach of contract.

You should be careful that if you are using the estate's money, that what you are doing is within your powers and for the benefit of the estate. If you have any doubt about whether you should be using the estate's money, this is something you should discuss with your solicitor or barrister and they will be able to help you.

If you have any issues dealing with an estate please do not hesitate to contact Charlotte Braham on 01494 893529 or by email.

If you wish to instruct a professional to assist you with administering an estate, please contact our Wealth Management and Taxation Team on 01494 521301.