Should an attorney also act as executor?

It is not unusual for a loved one to appoint their financial attorney to also act as their executor, once they pass away.

This is often very sensible when the attorney is a close trusted family member, friend or advisor who already has a detailed understanding of that individual’s finances.

It can also happen by default if there is no Will, and the attorney is the individual entitled to apply for a Grant under the rules of intestacy.

However, increasingly, one individual adopting both roles can lead to issues and disputes – particularly when there is distrust in the family and issues are then raised about that executor’s potential misconduct during their time as attorney.

These issues often come to the boil once a loved one has passed away and other family members are disappointed to learn that the estate is not as large as they were expecting.

Similar duties exist for the roles of attorneys and executors they are merely applied in different contexts:-

• An attorney must act in the best interests of those that appoint them, including ensuring their finances are kept separate and detailed accounts are kept.
• An executor must gather in the assets, pay off any liabilities and then administer the estate in accordance with the Will (or rules of intestacy if there is no Will). This includes taking steps (and even bringing Court proceedings) to recover assets back into the estate which may have been misappropriated during the Deceased’s lifetime.

Common complaints about an attorney’s conduct relate to things like excessive or unusual transfers or withdrawals from the Deceased’s accounts which cannot be explained, excessive gifting, claims for expenses which cannot be verified and a general failure to keep proper accounts.

An executor can be left in a very difficult or even conflicted position when allegations of their own previous misconduct as an attorney clash with their duties to investigate these allegations and potentially even pursue claims on behalf of estate against themselves.

In these circumstances, if these issues are raised at an early stage, the executor should consider renouncing their role so that another individual can look into these issues fairly on behalf of the estate.

If the executor has already intermeddled in the estate, or taken out a Grant, Court proceedings will be required to replace them even if that executor agrees to step down.

The Court’s primary consideration when determining whether an executor should be removed or replaced is ensuring that the estate administration will be carried out correctly and in the best interests of all the beneficiaries. In circumstances where there are well founded allegations against an executor relating to their potential misconduct as attorney, which need to be looked into, the Court will almost certainly consider their removal or replacement to be the best option.

If the executor is to be replaced, one option is for an independent professional administrator to act in their place. This individual is usually a solicitor experienced in administering estates, investigating misconduct allegations, and bringing Court proceedings if necessary. This approach can give reassurance to the family that any allegations will be investigated correctly, and the administration will then be concluded in the right way.

If you want advice on any of these issues, please do not hesitate to contact a member of our contentious probate team.

Upcoming Event: Attorneyship decisions and gifts – what can be done after death?

To learn more about powers of attorney or deputyship, register for our upcoming event on 12 June, where our Court of Protection specialist Holly Miéville-Hawkins and contentious probate expert David Wedgwood will explore what happens when such decisions are challenged after the donor’s death.

Register for the event here