A recent court case has highlighted a common but often misunderstood issue in estate administration: when is a professional executor actually entitled to charge for their work?

The case

Margaret Anne Selby died in 2022, appointing both a friend and a firm of solicitors as executors of her estate. Before preparing her Will, she had been told that the professional executors would charge for acting, and after her death the firm estimated its fees would not exceed £30,000 plus VAT.

However, the firm ultimately submitted bills totalling more than £53,000 plus VAT. The residuary beneficiary challenged whether those fees were payable at all.

The key issue

The dispute was not about whether the work had been carried out or whether the fees were reasonable. Instead, the Court considered a more fundamental question:

Did the professional executor have a legal right to charge the estate in the first place?

The Will did not contain a charging clause allowing the professional executor to be paid. The firm argued that Ms Selby's understanding that fees would be charged, together with later communications with the co-executor, gave them the right to be remunerated.

The Court's decision

The Court disagreed.

It held that simply informing a testator that professional executors will charge is not enough. As the Will itself did not contain a charging clause, and there was no valid written agreement satisfying the requirements of the Trustee Act 2000, the professional executor had no automatic right to charge the estate.

While the firm may still seek permission from the Court to recover payment for work undertaken, it could not rely on the invoices alone as evidence of an entitlement to fees.

Why this matters

This decision serves as an important reminder for anyone appointing a professional executor.

A solicitor, accountant or other professional does not automatically have the right to charge simply because they have been appointed as an executor. If payment is intended, the Will should contain a clear charging clause or there should be another valid legal basis for remuneration.

For beneficiaries, the case also demonstrates that executor fees can be challenged where there is uncertainty about the executor's entitlement to payment.

The takeaway

If a professional executor is expected to be paid, make sure the Will says so clearly. A properly drafted charging clause can help avoid disputes, delays and costly litigation during the administration of an estate