Solicitor executors must advise of potential legal rights: Society guidance
A solicitor who is a sole executor must inform all potential claimants of the scope for claiming legal rights, but a solicitor acting only as law agent to executors has no obligation to do so if instructed by the executors to the contrary, according to new guidance issued by the Law Society of Scotland.
The guidance was issued following a case in which a solicitor was cleared of professional misconduct by the Discipline Tribunal where he resigned as executor in an estate where the widow did not wish her son to be informed of his legal rights entitlement, but continued to act for the widow after assuming her as executor in his place. The tribunal held that there was no clear authority on the solicitor's duty in that situation.
In the guidance it is pointed out that executors have a duty to settle the deceased's debts, and that legal rights are in the nature of a debt on the estate, therefore "It follows that executors must inform all potential claimants of the scope for claiming the legal rights vested in them."
If a solicitor acting with other executors finds themselves in a minority on whether to advise a potential claimant, they must record their dissent and then immediately resign as executor in order to avoid potential personal liability. While there is no authoritative ruling on the point, it is though that they must also cease to act as solicitor in the executry.
A solicitor who advises executors without being an executor must inform them of their duties and potential personal liability, and if they are instructed not to inform potential claimants, they must get such instructions in writing. They must then also withdraw from acting, even if that means that any other solicitor would come under the same obligation and no solicitor would be able to administer the estate.