Practice Note - fees for solicitor executors

The Law Society of Northern Ireland (‘the Society’) Non Contentious Business Committee Practice Note 2021/1

Issued by the Non Contentious Business Committee to provide guidance in relation to the issue of the charging and agreement of professional fees by a solicitor in an estate where that solicitor is also acting as the sole executor (hereinafter called the “Solicitor-Executor”). This guidance also extends to all estates where a “Solicitor-Executor” has control as executor and includes estates where more than one solicitor or principal in a solicitor’s practice is appointed as executor regardless of whether the practice is a sole trader, partnership, a limited liability partnership or a limited liability company or if the “Solicitor-Executor” is a trustee company owned or controlled by such a solicitor or solicitor’s practice.

Practice Note 2021/1

The Society will consider whether a solicitor has complied with this guidance in any relevant matter before the Society concerning the professional practice or conduct of a Solicitor-Executor. A Solicitor-Executor may be asked by the Society to justify a decision to deviate from this guidance.

This guidance uses the terms “must,” and “should” throughout to contextualise how to understand the various directions. The terms have the below meanings:

Must – a requirement or other mandatory provision. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or regulations.

Should – good practice for most situations. These may not be the only means of complying with the requirements and there may be situations where the suggested course of action is not the best course of action. If you do not follow the suggested course of action, you must be able to justify why your alternative course of action is appropriate, in the particular instance.

The Committee hereby directs that:

1. The Solicitor-Executor must take all necessary steps to ensure the professional fees proposed to be charged are reasonable in accordance with all relevant legislation, published guidance and case law.

2. The basis upon which the professional fees are to be calculated and the Solicitor-Executor’s terms of business should be sent to the residuary beneficiaries at the outset of the administration of the estate.

3. The Solicitor-Executor should take particular care in the event that he/she is aware or ought reasonably to be aware that any residuary beneficiary is a vulnerable person and/or may be unaware of appropriate charging rates. In such event the

Solicitor-Executor should consider whether it is also appropriate to advise such a residuary beneficiary to seek independent legal advice in relation to the proposed professional fees at the outset of the administration of the estate.

4. The Solicitor-Executor’s consideration of the matter, his/her decision and the reasons for his/her decision whether it is appropriate so to advise such a residuary beneficiary should all be appropriately recorded.

5. If such independent legal advice is sought by such a residuary beneficiary, it ought to be paid for by that residuary beneficiary and not by the estate.