Key Takeaways
- Without a professional executor charging clause in the will, solicitors and other professionals who act as executors generally cannot charge for their time or expertise, regardless of how much work they carry out.
- Executor fees are only recoverable if there is either an express charging clause in the will or if every co-executor has agreed in writing in accordance with section 29 of the Trustee Act 2000.
- Informal agreements, retainer letters or costs correspondence do not substitute for a charging clause and will almost never entitle professional executors to claim fees from an estate.
- Beneficiaries who believe unauthorised fees have been taken can seek a court assessment under section 71(3) of the Solicitors Act 1974, usually within 12 months of receiving the bill.
- If you do nothing and professional executor fees are taken without proper authority, the estate can suffer significant loss and executors or solicitors may face a negligence claim.
- The drafting of a valid charging clause is a technical process. If you are making or revising a will, ask one of our solicitors at Go Legal to ensure proper wording using recommended legal precedents or STEP Standard Provisions.
- Professional executors and beneficiaries should take expert legal advice at the first sign of a fee dispute, as time limits and specialist procedures may apply.
- Courts may only approve remuneration on a discretionary basis if there is neither a charging clause nor unanimous written agreement from co-executors. This is not a guaranteed outcome.
If you are a solicitor, trustee, or beneficiary dealing with executor fees, our solicitors at Go Legal can help ensure your position is secure before costly mistakes occur. Book a free consultation or call 0207 459 4037 for advice tailored to your situation.
Can a Professional Executor Charge Without a Charging Clause in the Will?
Many solicitors are surprised to discover that, without a clear professional executor charging clause in the will, even a six-figure bill for estate administration can be entirely disallowed. In a very recent High Court case, a Surrey law firm was unable to recover over £53,000 in executor fees because the will simply did not give them the legal right to charge, regardless of agreements or the amount of work involved.
In England and Wales, a professional executor can only claim remuneration in two scenarios: if the will contains an explicit charging clause, or if every co-executor consents in writing as set out in the Trustee Act 2000. Informal agreements, retainer letters, or costs correspondence are not enough, and fee disputes can quickly become expensive negligence claims. This article explains the law, essential drafting tips, and the practical steps both executors and beneficiaries must take to protect their financial interests.
What Is a Professional Executor Charging Clause and Why Does It Matter?
A professional executor charging clause is a clear provision in a will that gives a solicitor, accountant, or similar professional the right to charge for work done as executor in administering the estate. Without such a clause, professionals are not generally entitled to remuneration beyond reimbursement of their expenses.
A missing charging clause can have real and costly consequences. In the Royal Holloway v QLaw case, a law firm lost entitlement to over £53,000 because the will lacked a charging clause, despite cost estimates and co-executor awareness.
Can a Professional Executor Charge Fees Without a Charging Clause in the Will?
A professional executor cannot lawfully charge for their work in administering an estate unless the will includes a valid charging clause or each co-executor provides express written consent. Without this, solicitors and other professionals can only reclaim out-of-pocket expenses and not their time or professional fees.
What Are the Rules for Lay vs Professional Executors?
A lay executor is only entitled to reasonable expenses and cannot claim fees for time spent unless the will expressly allows for it. Professional executors cannot presume a right to charge because of their profession. The law makes no distinction in entitlement unless specific formalities are observed.
When Can Executor Fees Be Charged to an Estate? The Legal Routes Explained
Executor fees may only be charged to an estate through one of three lawful routes.
1. Charging Clause in the Will: The Safest Route
Including a charging clause in the will is the surest way to authorise professional executor fees. This provision should clearly state the entitlement to payment for professional work relating to administration of the estate and, where relevant, trust matters.
2. Written Agreement Under the Trustee Act: When Is Co-Executor Consent Valid?
Where there is no charging clause, a professional executor can only charge fees if every other appointed co-executor gives express written agreement before the professional starts chargeable work. It must be a clear, signed document. After-the-fact acknowledgment or acquiescence in fee discussions does not satisfy the requirement.
3. Court Approval for Professional Executor Fees: Last Resort
If neither a charging clause nor the required unanimous written agreement is present, the only remaining route is to apply for court authorisation to receive payment for services on a quantum meruit basis. This route is uncertain, and the costs or risks often outweigh potential recovery.
The Hidden Compliance Trap: Step-by-Step Professional Charging Clause Checklist (for Solicitors)
To ensure compliant and recoverable charges, professional executors should follow this practical compliance checklist:
- Review the will to confirm if there is an express charging clause covering your appointment.
- Draft or review proposed charging language to ensure it authorises the exact services for which fees will be claimed, ideally at the will-drafting stage.
- Where no clause exists, secure a written and signed agreement from every co-executor—active, inactive, or retired—before taking on any chargeable work.
- Provide upfront, clear disclosure of your intended fee structure, hourly rates or charging basis before starting.
- Keep robust, detailed records of all fee communications, costs, and written agreements as evidence of compliance.
- Never rely on informal exchanges, cost emails, or retainer paperwork as a substitute for proper consent. Only a formal will clause or unanimous written agreement is valid authority.
Worked Example: Success vs Failure in Professional Executor Charging Clauses
Practical examples show how strict the requirements are for professional executor fee recovery.
Successful Scenario: Fees Allowed When Process Is Followed
Henry, a solicitor, is appointed executor for a client. A charging clause is included during will drafting that covers all usual professional charges for services provided. When the client dies, Henry discloses fee estimates and sends regular bills, all matching the scope of the clause. The charges stand up to scrutiny and are properly recovered.
Failed Scenario: Fees Denied When Legal Requirements Are Missed
Daniel, a chartered accountant, is one of three executors named in a will that says nothing about fees. He only obtains written consent from the other active executor—none from the third, who is retired. Daniel later receives a £35,000 challenge from a beneficiary. The court finds that because not all executors signed before Daniel began charging, his entitlement fails and fees must be repaid.
Common Pitfalls and Mistakes: When Charging Clauses Fail
Professional executors most often lose their right to fees by misunderstanding formal requirements or relying on informal documents.
Why Retainer Letters, Cost Agreements or Beneficiary Consent Are Not Enough
Retainer letters and cost emails written to a client before death usually cover pre-death legal work, not executorship. Even forwarded terms or acknowledgments by co-executors will not substitute for a charging clause or formal, pre-agreed, signed consent.
Scope Limits: When a Charging Clause Still Won’t Authorise Fees
A charging clause must explicitly authorise the work for which fees are claimed and match the scope of the executor’s role. If the clause is vague or charges relate to unrelated professional work, fee recovery is likely to be refused.
Risk of Professional Negligence Claims for Solicitors
Where fees are denied due to non-compliance, solicitors could face negligence claims from executors missing out on fees or from beneficiaries overpaying. Regulatory and reputational damage is also a real risk for firms in this situation.
| Case | Facts | Outcome | Why It Matters |
|---|---|---|---|
| Royal Holloway and Bedford New College v QLaw Legal Services Ltd [2026] EWHC 2090 (SCCO) | Solicitor-executor charged £53,187.60 to estate without a charging clause, relying on retainer letters and co-executor emails | All fees disallowed. Only potential route was discretionary court authorisation | Charging clause in will is critical. Retainer letters and acknowledgments are not enough |
| Shepherd & Co Solicitors v Brealey [2024] EWCA Civ 303 | Solicitor-executor failed to obtain written agreement from all executors (one did not sign), despite costs letters/invoices | Fees disallowed. Court of Appeal confirmed all must sign for statutory authority | Strict compliance. Lack of full written agreement invalidates the right to charge |
You may also find our guide on Professional Negligence Claims Against Solicitors useful if you are navigating this issue.
How to Draft a Valid Charging Clause in a Will
A valid charging clause precisely authorises named professional executors to claim fees for estate administration and, if needed, related trust work.
Essential Elements of a Charging Clause
- Specifies that professional executors are entitled to charge for their services.
- States whether the right covers just specialist work or all administrative work including that done by non-professionals.
- Makes clear if fees can be paid for work that could otherwise be handled by a lay executor.
STEP Standard Provisions and Precedent Wording
The STEP Standard Provisions are a benchmark, widely respected and clear, and can be incorporated by reference for robust charging powers.
Bespoke Clauses: When to Customise and What to Include
Customised charging clauses may be needed for complex family, charity, or business estates, or if the testator wants to restrict or expand entitlement. Be explicit in granting (or limiting) both the entitlement and the scope of potential charges.
If you are responsible for will drafting, our solicitors can help draft precise charging language and guide you through STEP Provisions and best practice.
What Happens When Professional Executor Fees Are Disputed or Challenged?
Disputes over executor fees are increasingly common, especially where procedures have not been properly followed.
How to Challenge Unauthorised or Excessive Executor Fees
Beneficiaries can challenge executor fees where:
- There is no valid charging clause in the will.
- Not all co-executors provided written consent.
- Charges are excessive, not aligned with earlier estimates, or reflect duplicated or unnecessary work.
If a challenge is successful, executors may be ordered to repay fees or fees may be formally assessed and reduced.
Assessment Process: What Beneficiaries and Executors Need to Know
- The beneficiary applies for a detailed assessment of costs, often under s.71(3) of the Solicitors Act 1974.
- Executors must disclose any charging authority, including any written consents or clauses.
- The court examines whether the executor actually had legal entitlement to charge, and if so, whether the amount claimed is reasonable and within the scope disclosed.
- The outcome may include disallowance of all fees, partial reduction, or confirmation of entitlement if all steps were met.
Possible Outcomes: Repayment, Court-Approved Remuneration or Quantum Disputes
- Full disallowance is possible if no authority is found.
- Court-approved fees are discretionary and rare, usually only where tangible benefit and necessity are proven.
- Quantum disputes focus on amount and necessity when basic entitlement is established.
Our Winning Approach to Professional Executor Charging Clause Disputes
Our solicitors at Go Legal provide strategic, dedicated support for clients involved in executor charging clause disputes, representing both solicitors and beneficiaries.
Our solicitors deliver:
- Proactive compliance and risk reviews for law firms and executors.
- Practical advice on will-drafting and executor appointments.
- Full representation for those seeking repayment or costs assessment.
- High-tempo, responsive support for executors and firms facing immediate challenges.
- Specialist insight in professional negligence, regulatory exposure, and probate litigation.
- A practical, solutions-focused approach designed to achieve quick, cost-effective outcomes.
If you need strategic advice or urgent help on a professional executor fee issue, our solicitors can rapidly assess risk and outline your options.
The Royal Holloway v QLaw Case: What Happened
Background
- The deceased: Margaret Anne Selby, died 20 November 2022.
- The will (12 March 2020): Appointed as executors:
- Patricia Malcher (friend, lay executor)
- “The directors at the date of my death in the company of Quantick Daley Solicitors (a trading division of QLaw Legal Services Ltd)”
- Effect: Neil Quantick (sole director of QLaw) became joint executor alongside Malcher.
- Critical omission: The will contained no express provision for QLaw’s directors to render professional charges—no charging clause.
- The fees: Between 24 January 2024 and 26 July 2024, QLaw billed the estate £53,187.60 for Quantick’s services as professional executor.
- The challenge: Royal Holloway, the residuary beneficiary, applied under s.71(3) Solicitors Act 1974 for assessment of the bills.
- Preliminary issue: Did QLaw have a right to charge at all?
QLaw’s Position
QLaw relied on these documents:
- Retainer letter from 2019 stating, “as professional executors we will charge” and recording Ms Selby’s confirmation of her happiness.
- Email from co-executor Malcher forwarding QLaw’s “terms of business” letter to Ms Selby.
- Costs correspondence from January 2023 detailing hourly rates and Malcher’s acknowledgment.
QLaw argued these together amounted to proper authorisation for professional charges.
Beneficiary’s Case
The beneficiary argued:
- The will contained no charging clause.
- The retainer letter was limited to drafting the will, not administration.
- Malcher’s emails were acknowledgment, not a statutory “written agreement” under s.29(2).
- Statutory requirements had not been met.
The Court’s Decision
- The retainer did not grant authority to charge; it at most showed a willingness to include such a provision in a will, which was not done.
- Malcher’s acknowledgment did not meet s.29(2) requirements: consent must be express, in writing, and from all executors.
- The law is clear: absent a will clause or strict written consent from all, executors have no right to be paid for their services.
- All fees were struck down. The only remaining route was potential court approval for remuneration on a quantum meruit basis, which is discretionary and never guaranteed.
Comparing Royal Holloway with Shepherd v Brealey
Both cases involved solicitor-executors billing estates without a charging clause in the will. Both failed to recover fees under s.29(2) Trustee Act 2000, but for slightly different reasons.
| Element | Royal Holloway [2026] | Shepherd v Brealey [2024] (CA) |
|---|---|---|
| Charging clause in will? | No | No |
| Attempted reliance | Retainer letter + costs correspondence with co-executor | Retainer letters + invoices signed by one co-executor |
| Fatal flaw | Co-executor’s acknowledgment ≠ “written agreement”; retainer letter related to drafting will, not administration | Third executor (non-proving) never signed → not “each other trustee” |
| Court’s reasoning | S.29(2) requires express written agreement, not acquiescence or implied consent | S.29(2) means all executors, even inactive/non-proving ones. Statutory language is unqualified |
| Outcome | No right to charge; quantum meruit application possible but not guaranteed | Same. Fees disallowed; quantum meruit route mentioned but not pursued |
Lessons:
- “Each other trustee” means every single one, with no exceptions for inactive executors.
- “Agreed in writing” is a clear, standalone agreement—not costs info acknowledgment, not just countersigning invoices.
- The will is king. If it appoints executors but grants no charging right, the statutory route is narrow and easy to fail.
How to Draft a Compliant Charging Clause
If you’re drafting a will appointing professional executors, include a clause such as:
Option 1: STEP Standard Provisions (recommended)
“My Trustees may adopt and apply the STEP Standard Provisions (2nd Edition) as if set out in this Will. In particular, my Trustees who are engaged in any profession or business may charge and be paid all usual professional or other charges for business transacted, time spent, and acts done by them or their firm in connection with the administration of my estate and the trusts of this Will, including acts which a lay Trustee could have done personally.”
Option 2: Bespoke simple clause
“Any Executor or Trustee who is a solicitor, accountant, or other professional person may charge and be paid reasonable professional fees for work done by them or their firm in administering my estate, whether or not that work is of a kind that a lay Executor could have undertaken.”
Critical elements:
- Express authorisation to charge.
- Scope: administration of estate and trust work.
- Includes work a lay executor could do (otherwise limited to specialist work only).
What Happens If You’ve Already Charged Without a Clause?
If you’ve administered an estate and billed fees without a charging clause or valid s.29(2) agreement, you face:
1. Beneficiary Challenge (s.71(3) Assessment)
- Beneficiaries have 12 months (extendable) to apply for assessment.
- If you have no right to charge, all fees (not just quantum) are at risk.
2. Your Options
A. Apply for court authorisation (quantum meruit)
- Ask the court to exercise inherent jurisdiction to permit reasonable remuneration.
- This is discretionary. The court considers benefit to the estate, necessity of work, any breach of duty.
- Costs risk: you may bear costs of the application, and the court may reduce or refuse fees.
B. Negotiate with beneficiaries
- Offer a reduced settlement (e.g., 50 to 70 percent of billed fees) in exchange for withdrawing the challenge.
- This is faster, lower risk, and preserves relationships.
C. Defend on quantum (if you have a charging clause)
- If the will does have a clause, you have the right to charge; the dispute is only about the amount.
- Defend on the basis the work was reasonable and necessary.
3. Risk Management
- Professional indemnity insurance: Notify insurers as this may be a negligence claim (failure to include charging clause when drafting the will).
- SRA implications: Charging without entitlement could be a conduct issue, such as taking unfair advantage or lack of integrity.
Conclusion
The Royal Holloway case is a stark reminder: good work does not create a right to be paid. A solicitor acting as professional executor must have:
- An express charging clause in the will (safest route), or
- Written agreement from every other executor under s.29(2) Trustee Act 2000 (narrow, technical, easily failed), or
- Court permission on a quantum meruit basis (discretionary, costly, no guarantee).
A retainer letter, costs correspondence, and informal “agreement” are not enough. The law prioritises fiduciary principles and transparency over commercial convenience.
For solicitors, treat charging clauses as non-negotiable when drafting wills where you or your firm will be appointed. If the will is already executed without one, secure compliant s.29(2) agreements before you start work—or decline the executorship.
For beneficiaries, if a solicitor-executor has charged fees and the will contains no charging clause, you have strong grounds to challenge. Seek specialist advice within 12 months of the bill.
Our solicitors at Go Legal advise on both sides of executor fee disputes, defending solicitors facing challenges and representing beneficiaries and estates seeking to recover overpaid or unauthorised fees.
FAQs
What makes a professional executor charging clause valid?
A valid clause is one that is expressly included in the executed will, clearly spelling out the power for professional executors to receive fees for their work, ideally for all administration and trust activities. Using STEP Standard Provisions or similarly precise language is best practice.
Can a professional executor charge if only some co-executors agreed?
No. Written consent must come from every other appointed executor, not just those who are active or involved.
Does it matter if the will mentions professional fees without a clear clause?
Yes. Vague references or intentions to pay fees are not enough. A clear, direct charging clause is necessary for lawful remuneration.
How do executor fees get calculated when a charging clause exists?
Fees should reflect reasonable value for work performed, match professional rates disclosed at the outset, and stay within the scope and limits of the clause.
Is it possible to recover professional fees for non-legal work?
If the charging clause permits fees for all administration, including non-specialist tasks, then those fees can generally be recovered. If the clause is restricted to specialist work, only those services can attract a fee.
What happens if the will is silent and not all co-executors are active?
Every appointed executor, regardless of activity or involvement, must give signed, written consent before any fees may be lawfully charged.
Are executor fees always taxable income for professionals?
Professional executor fees are typically taxed as income, but tax advice should always be taken for the particular circumstances.
Can a lay executor ever receive fees from an estate?
Only if the will contains an explicit charging clause or if all adult, competent beneficiaries agree to remuneration.
How soon must a beneficiary act to challenge executor fees?
A short, strictly enforced deadline applies. Check the current period before acting. The standard window is within 12 months of receiving the relevant bill, but special circumstances can sometimes allow extensions.
Does an email from a co-executor count as written agreement for charging purposes?
No. Only an express, signed written agreement from all executors will satisfy the legal requirement.
