What fees can an executor charge when administering a deceased’s estate? Melissa Hughes, Head of Wills and Probate at GW Legal, explains.

What is an executor?

An executor is a person named in someone’s will who is legally responsible for handling their estate on death. A person can name one or more people to be executor(s) of their will.

The executor is responsible for:

• gathering details of all assets
• calculating the value of the estate
• working out whether any inheritance tax is payable and paying it
• obtaining probate
• selling any property
• paying off any debts due by the deceased
• distributing the estate to the beneficiaries in accordance with the wishes in the will

Being an executor comes with a great deal of responsibility, as managing someone’s estate can be very time consuming depending on the size and the complexity, as well as how much time the executor is able to commit to carrying out their duties. In many cases, it could take over a year to complete.

If the job is not carried out properly, the executor can also become financially liable for any mistakes they may make, such as failure to identify and pay off any debts, or failure to pay any inheritance tax that fell due.

What fees can an executor charge when administering an estate?

Executors, whether professional or non-professional, are entitled to be reimbursed by the estate for their reasonable out-of-pocket expenses, for example, if they have paid for the grant of probate out of their own pocket or paid for a valuation on a property. However, there are limits to executors charging further fees for their services in carrying out the estate administration work.

Professional executors

Section 28 and 29 of the Trustee Act 2000 provides that professional executors, such as solicitors who specialise in estate administration, can charge for their time spent administering the estate. This is only if a ‘charging clause’ is included within the will or they obtain approval from co-executors or beneficiaries, through a terms of business letter. This service is usually charged by the hour and the fee can vary depending on experience.

Non-professional executors

Non-professional executors, such as a lay person or family member or friend, are not entitled to be paid for their time spent administering the estate, unless a lay person’s charging clause is included within the will. However, this must be carefully drafted, as it could lead to a dispute as to whether they are entitled to receive any remuneration for carrying out their services.

What is a charging clause in a will?

A charging clause in a will authorises an executor to charge for their time carrying out the estate administration. Most charging clauses are drafted to allow a professional executor to charge fees, but in some cases the will may include a provision for a non-professional executor to charge for their time also.

The judgement in the recent case of Da Silva v Heselton (2022) provided some interpretation as to when an executor can rely on a charging clause to charge for work done in carrying out the estate administration:

"a trustee or executor can rely upon the charging clause in the Will to charge for work done or time spent in the administration of the estate only if that work falls within the scope of their profession or business in question; that is to say if it is work of a type which would attract or incur their usual professional fees."

Therefore, if a charging clause in a will refers to professional fees, there will need to be a link between the executor’s profession and the entitlement to charge for their services in administering the estate. That is, it must fall within the scope of their usual profession or business.

If there is no charging clause or the interpretation of the charging clause is in doubt, to avoid any future dispute an executor should consider agreeing with the beneficiaries to their fee for carrying out such estate management, providing the beneficiaries are of age and have capacity to give consent. Failing to do so could leave the executor challenging their claim for payment in a court.

About the author

Melissa Hughes is a Solicitor and Head of Wills & Probate at GWlegal, @GWlegal. With over 10 years’ experience in the legal industry, Melissa specialises in all aspects of Private Client matters, including the preparation of Wills, Probate, Estate Management and Lasting Power of Attorney.

See also

Place a deceased estates notice

The duties of an executor: what to do when someone dies

What is the difference between an executor and an administrator?

Find out more

Trustee Act 2000 (Legislation)

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Publication date: 26 June 2023

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.