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Somewhere in England:

John is the only child of the widow Jane and sole beneficiary of her will. According to her wishes he was living in her house and managing her affairs while she was sick. When she died, it turned out that her will had not been recently updated: the latest copy, lodged with Darke, Stanić, Mills (solicitors), did not name John as an executor, but rather her late husband (John's father) and the partners of the law firm itself. I presume this means that the solicitors are effectively the sole executors.

If so: to whom, if anyone, are the solicitors now answerable for the time or money they take to obtain probate and administer the estate? Can they just take as long as they like, and invent busy-work and complications in order to charge the estate as much as they like?

What steps, if any, can John take to ensure that the impact on the estate is minimized?

EDIT: The Solicitors’ (Non-Contentious Business) Remuneration Order 2009 seems like it might (?) apply. But even if so it seems extremely vague in stating, "A solicitor's costs must be fair and reasonable having regard to all the circumstances of the case..." Who's to judge what is "fair" or "reasonable"? What incentive is there for the solicitors to operate efficiently and with restraint here?

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[T]o whom, if anyone, are the solicitors now answerable for the time or money they take to obtain probate and administer the estate?

They are answerable to the estate which ultimately means to the beneficiaries.

Can they just take as long as they like, and invent busy-work and complications in order to charge the estate as much as they like?

No, that wouldn't be ethical. Ultimately, if you challenged their fee they would be required to justify it on the basis of the work done.

What steps, if any, can John take to ensure that the impact on the estate is minimized?

Ask them for a quote and what the scope of the work is that justifies their fee.

Who's to judge what is "fair" or "reasonable"?

If the statute doesn't specify who is to judge then, ultimately, it will be a judge. "Fair" and "reasonable" when used in a legal context are not subjective measures; they are objective and are judged against standards established by 1,000 years of common law judgements.

What incentive is there for the solicitors to operate efficiently and with restraint here?

Compliance with the law. Compliance with their code of ethics. Customer service. Professional pride. Reputation. The fact that most lawyers work 80+ hours per week and have as much need of "busy work" as they do a hole in the head.

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  • Good to know. Forgive my suspicion—I'm new to all these concepts. It just seems fundamentally incestuous and unbalanced to have an entity represent the estate in all aspects, including approving and authorizing the work done and time spent by that very same entity. I do understand reputation is ultimately at stake. With regard to "fair and reasonable", the statute continues to enumerate at least a dozen kinds of "circumstance" affecting fees, allowing a lot of wiggle room, especially as one is "importance of the case to the client"—*surely* there can be no objective formula for that?
    – jez
    Mar 31, 2016 at 21:34
  • I think it would be worthwhile if you posed a question along the lines of "What does reasonable mean?" - I don't think one has been asked
    – Dale M ♦
    Mar 31, 2016 at 21:47
  • We are minor participants in a case similar to this, and the solicitors acting as executors are going to great pains to ensure that the majority benefactor (a charity) is consulted on all important decisions, like whether to accept a reduced offer for the property.
    – Michael Kay
    Apr 23 at 11:10
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It is probably a bit late for "John", but other readers may be interested to know that the beneficiaries can ask a solicitor not to act as executor (it is called "renouncing" the executorship). In general, there is a presumption that a solicitor should renounce if all the beneficiaries ask them to (but obviously not if there is a family feud to be adjudicated); but DS&M cannot be forced to do so.

Note that it is only possible to renounce an executorship before starting to do any work on the estate.

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  • In the situation posited, this would result in intestacy or at best an application to the Court; either way, I foresee a lot of money passing from the estate to solicitors.
    – Tim Lymington
    Aug 22, 2018 at 19:15
  • @TimLymington It would not result in intestacy. The will stands even without the named executors. Someone would have to apply to for a "Grant of Letters of Administration with the Will Annexed" see privycouncil.org.uk/Formalities/Components/…. While it is technically true that this involves the Court, that is also true of a normal grant of Probate, and it should involve no more costs.
    – Martin Bonner supports Monica
    Aug 23, 2018 at 5:32

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