Can a solicitor who acts as a professional executor recover costs from the estate if the will contains no charging clause? In Royal Holloway and Bedford New College v QLaw Legal Services Limited [2026] EWHC 2090 (SCCO), the Senior Courts Costs Office confirmed the answer is usually no, and that informal cost estimates, email exchanges, and a co-executor’s passive acceptance of charges will not fill the gap.

For costs lawyers and costs draftsmen advising firms that take on executorship work, the case is a useful, and fairly stark, reminder of how narrow the routes to remuneration actually are.

What the Case Was About

The claimant, Royal Holloway and Bedford New College, was the residuary beneficiary of an estate. The deceased’s will appointed a lay executor together with “the directors” of a trading division of the defendant firm, QLaw Legal Services Limited. The will contained no charging clause permitting the professional executor to bill for their time.

Between January and July 2024, the firm rendered bills totalling £53,187.60 for the director’s services as executor, including a “value element” charged at 2% of the gross estate. The residuary beneficiary applied under section 70 of the Solicitors Act 1974 for an assessment of those bills. This is the same solicitor and client costs dispute process that arises whenever a client or beneficiary challenges what a firm has charged. Costs Judge Leonard was asked to determine, as a preliminary issue, whether the firm had any right to charge at all.

Why a Charging Clause Usually Matters

The starting position in probate and trust law is that an executor or trustee acts gratuitously unless the will (or some other source of authority) says otherwise. Where a will contains no charging clause, a professional executor typically has two possible routes to remuneration:

• Section 29(2) of the Trustee Act 2000, which allows a professional trustee or personal representative to be paid, but only where every other trustee or executor has agreed in writing that they may be remunerated.
• The court’s inherent jurisdiction to authorise payment, exercised sparingly and considered separately from the preliminary issue in this case.

Costs Judge Leonard relied heavily on the Court of Appeal’s reasoning in Shepherd & Co Solicitors v Brealey [2024] EWCA Civ 303, a case with strikingly similar facts: a solicitor firm appointed as executor alongside a lay co-executor, no charging clause, and a dispute over whether the firm could recover fees under section 29. That decision made clear that section 29(2) demands genuine written agreement from every executor, not documentation that merely evidences a professional executor’s intention to charge.

Why the Firm’s Evidence Was Not Enough

QLaw pointed to several pieces of correspondence to argue it had the necessary authorisation:

• A letter sent to the deceased before her death, explaining that the firm’s directors would charge for acting as professional executors.
• Cost estimates and hourly rate information sent to the lay co-executor during the administration.
• The co-executor’s requests for costs updates and her acknowledgment of that information.

None of this, the judge found, amounted to written agreement within the meaning of section 29(2). The pre-death letter went only to the making of the will; it could not itself confer a right to charge, since only the will’s own terms could do that, and the will contained no charging clause. The co-executor’s acceptance of cost estimates and her general cooperation with the administration was, at most, evidence of “de facto acquiescence”, not the deliberate, informed written agreement the statute requires. The judge was also clear that informed consent is not the test; the question is simply whether written agreement to remuneration exists, and here it did not.

The practical result: the firm was found to have no right to charge the estate for the director’s professional services as executor, beyond reimbursement of genuine out-of-pocket expenses. Whether the court’s inherent jurisdiction might yet allow some recovery for work actually done remains open, and will depend on a further application by the firm.

What This Means for Costs Practitioners

This judgment is directly relevant wherever a firm, or an individual solicitor, is named as executor and the underlying will lacks a charging clause, a scenario that arises more often than it should, particularly where the will was drafted some years before the death and practice has since moved on.

A few practical points stand out for anyone advising on, or assessing, bills in this area:

• A charging clause has to be in the will itself. Correspondence at the will-drafting stage explaining that charges will apply does not substitute for an actual clause, however clearly it is worded.
• Section 29(2) requires all other executors to agree in writing. Passive acceptance of an hourly rate schedule, or simply not objecting to a costs estimate, is unlikely to meet that bar.
• Costs correspondence is not the same as authorisation. Firms that rely on emails setting out hourly rates as their basis for charging should treat this judgment as a warning that such correspondence, on its own, is unlikely to be sufficient.
• The inherent jurisdiction route remains available but distinct. A firm refused recovery under section 29(2) is not automatically without remedy, but it will need to make a separate, reasoned application, and success is not guaranteed.

For costs draftsmen preparing or defending a Solicitors Act assessment involving executor’s fees, the sequence in this case (application for assessment, preliminary issue on entitlement, then, if relevant, a further hearing on inherent jurisdiction) follows a broadly similar shape to the detailed assessment process practitioners will already recognise from inter partes work, and is a useful template for how these disputes are likely to be managed procedurally.

How Greener Costs Can Help

Disputes over a professional executor’s right to charge sit at the intersection of costs law and probate practice, and they can be won or lost on close reading of correspondence that was never intended to function as a charging clause. Greener Costs advises solicitors, costs lawyers, and costs draftsmen across England and Wales on Solicitors Act assessments, bills of costs, and detailed assessment proceedings, including matters involving disputed entitlement to charge.

If you’re dealing with a Solicitors Act 1974 assessment, or need support preparing or responding to a bill where entitlement to charge is in question, contact Greener Costs on 01204 263047 or info@greenercosts.co.uk.

FAQs

Can a solicitor charge for acting as a professional executor if the will has no charging clause? Generally, no. Without a charging clause in the will itself, a professional executor typically needs written agreement from every other executor under section 29(2) of the Trustee Act 2000, or a successful application to the court’s inherent jurisdiction, before they can recover fees for their time.

Does a client’s awareness that a firm will charge as executor count as agreement to be remunerated? Not necessarily. In Royal Holloway v QLaw, the court held that a co-executor’s acknowledgment of cost estimates and general cooperation with the administration did not amount to the written agreement required by section 29(2) of the Trustee Act 2000.

What does section 29(2) of the Trustee Act 2000 actually require? It requires that every trustee or personal representative other than the one seeking payment has agreed in writing that the professional trustee or executor may be remunerated for their services. Informal correspondence or passive acceptance is unlikely to satisfy this requirement.

If a professional executor isn’t entitled to charge under section 29(2), is there any other way to recover fees? Possibly. The court retains an inherent jurisdiction to authorise remuneration in appropriate circumstances, though this is a distinct application, considered separately, and is not guaranteed to succeed.