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How can I prevent solicitors charging excessive fees for obtaining Probate?

...by not making solicitors executors of your will.

 

The one sentence version: By not making solicitors executors of your will.

The longer version: Most people go to a solicitor to make their will. Most solicitors will ask if you would like the firm to be executor of your will and point out the benefits which are continuity and expertise. If you make members of the family or friends executors and one dies, you will have to appoint a replacement. With a firm of solicitors, the firm becomes executor and there will always be someone there to obtain Probate and wind up your estate.

The problem with this is that some solicitors have fixed fees for winding up an estate and obtaining Probate and they are often high – as much as 2.5% of the value of the estate or more. 

Given that even a modest family home might be worth £750,000, fees could easily be £22,500 – or more – just for overseeing the sale of the house, plus selling off, say, a portfolio of £150,000 of investments. Bear in mind that most solicitors charge on a time basis so every time they answer the phone for even the simplest of enquiries, the clock starts ticking.

The Law Society’s complaints box – and the columns of family finance pages in the national newspapers – is full of letters from disgruntled families who feel they have been ripped off by solicitors acting as executors. In addition, it is virtually impossible to get rid of a firm of solicitors who are executors once they have been appointed. Few legal firms will bring an action against another.

In addition, if the estate is simple – say, the family home, a couple of savings accounts and a portfolio of shares – it is relatively easy to wind up the estate yourself.

The best solution is to make the beneficiaries executors, (or other trustworthy adults if the beneficiaries are minors). If they feel they need legal or accountancy help, they can then shop around, obtain estimates from three or four firms, and appoint them to help out. If the professionals don’t do the job, or they start to charge too much, they can be sacked.

Solicitors will almost certainly deny that there are any drawbacks in appointing them as executors. But you have nothing to lose by letting the executors appoint legal and accountancy advisers, secure in the knowledge that they can be sacked if they don’t perform or overcharge.

An executor needs to a responsible adult capable of administering your estate on your death. Their main functions will be:

* To ascertain the value of your estate and prepare a schedule of the assets
* Unless the estate is very small, to obtain authority from the Probate Registry to administer the estate (a similar process in Scotland requires the executor to obtain "confirmation")
* To pay any debts due, including Inheritance Tax
* To distribute the residue of the estate to those persons entitled, either in terms of a will or by legal entitlement.

Which?, formerly the Consumers’ Association, publishes a helpful guide – What to do when Someone Dies – or get hold of a copy of A Practical Guide to Obtaining Probate, Peter Wade, Law Books.

12 comments so far. Why not have your say?

Patrick Moore

Apr 09, 2008 at 18:39

I agree entirely with the recommendations of the article and there is plenty of advice out there without paying a percentage fee. In any case solicitors still need the information to carry out the work and someone in the family will still have to dig that information out.

I would add that you will also feel happier about loading the task on your close family/friends (and it is an onerous task at a stressful time) if you have taken the time to sort and keep your affairs organised. This will make sure that the poor executor doesn't have too much trouble in valuing the estate for the purposes of getting probate and has a solution for any Inheritance Tax Payment that maybe due.

Been there, done it, biggest problem was a leasehold property with not enough years on the lease to sell it! It took 18 months to sort out - bless you Auntie!

Patrick Moore

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john brace

Jul 10, 2008 at 17:00

I have had the unhappy task of being Executor and obtaining Probate for 4 members of my family at various times.

My experience has always been a good one, with guidance at each step of the way from doctor/hospital , Registrars and Funeral Directors .

Instructions on forms are fairly clear and there is always help available . Above all - it is a very therapeutic task at a time when you can feel helpless and bereft.

Being able to do this last thing for a loved one - and this means detailing personal possessions etc- gives a real sense of satisfaction and a does a real service.

I would like to think that someone in my family will do the same for me, rather than pay strangers - but I'm not counting on it!

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Anthony Tahourdin

Jul 21, 2008 at 16:02

It may be that my firm is in a minority but I recognise very little of this article as accurate. It is this firm's policy to avoid taking executorships and many sensible firms do the same, there are substantial risks attached to the post. Having said as much when we do take on the risk it frequently reduces not increases costs.

It is certainly true that some solcitors charge fees on the basis of a percentage of value but that again is not universal, we do not and have not for at least 10 years. Fees can always be negotiated, we currently charge on a time only basis, this frequently rewards the inefficient and we are considering whether to look at other methods of charging.

What we have often noticed is that when people look for quatations they look to the hourly rate, ours is relatively high and we loose work as a result but frequntly if we are asked to look at a matter anther organisation has worked on it we discover that there fees are significantly higher than ours. This we suspect is a reflection of the benefits of using specialist practitioners and I would always advise that when looking to empoly a solicitor for this sort of work one should look for a specialist in a medium sized firm.

We often recommend DIY Probate to people dealing with non taxable lower value estates and as John Brace says it can be theraputic, however the larger an estate is the greater the danger of falling into one of the many traps that await the unwarry.

I am not necessarily seeking to advertise the services of solicitors, it is very much a case of horses for courses but I fear your article does not represent the true state of the market.

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Gary Ovey

Jul 23, 2008 at 12:47

I agree with my professional coleague, Anthony that this article is highly inaccurate.

It is a sad fact that our profession is seen as money grabbing and "ripping off" people. This is not the case at all. We (as many firms do) provide a fair priced and professional service to our clients, whether we are the executors or instructed by lay executors.

The simple fact is that we are all highly experienced in dealing with estates, often turning up assets that family were not aware of and had completely missed in their look through the deceased's papers - quite understandable if they have just lost a loved one and are not fully aware of exactly what to look for.

I have lost count of the number of times that lay people have come to me to sort out an estate they have tried to administer only to get into confusion and are extremely grateful that I have been able to sort out the estate properly.

It is also the case that when we deal with an estate, we know what the law says and what the procedure is in regard to time limits and tax matters, which a lot of lay people either do not know about or just do not adhere to.

There is a very big difference between just doing a job and doing it right!

Please ensure your articles are evenly balanced in future and not biased against one of the oldest professions in the world.

Gary Ovey

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Gill Steel

Jul 27, 2008 at 15:07

Whenever you use a professional be it a builder, banker, architect, solicitor, dentist etc you are buying their expertise. You are not obliged to purchase experience but in doing so you are asking someone familiar with the processes and routines to relieve you of the time and energy it will otherwise take someone without that experience to complete the relevant task.

It is easy to use generalisations as to fees as a criticism of professionals but in my experience if you choose a specialist you normally will find the job properly and efficiently done.

Not every deceased person is organised and leaves their affairs in order. Not every relative is able to undertake the task of dealing with the deceased's affairs when bereaved. Sometimes it really does make sense to appoint someone who knows the system and has to abide by professional rules to carry out the task.

It always makes sense to ask for details of how costs are to be charged if only members of a law firm are appointed as executors. A responsible firm in this situation will automatically provide the residuary beneficiaries with details of their terms of business at the start of the transaction and if the estate is modest may well offer to renounce as executors.

Whilst solicitors are permitted to charge fees which are 'fair and reasonable' there are plenty of rules governing the way in which solicitors' costs can be incurred. Not many other people are as regulated in this respect as the solicitors profession nor obliged to compensate for any losses. For example, should a Bank or financial instuution default and a member of staff take the deceased's money there is a modest limit on how much the institution has to repay whereas the solicitor's profession repays the whole of any such defalcation, which fortunately occurs rarely.

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don madsen

Mar 04, 2009 at 17:11

My wife died and I hired attorney to take care of probate. He stalled things for years, checked on things that were clear, had bad advice, everytime I wrote a letter he pretended to be confused and wrote back asking for more explanation...ended up taking about 30% of estate my wife left.

I was such a fool to believe that any attorney could be an honorable person.

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Anne Taylor

Feb 21, 2010 at 11:02

I am the sole beneficiary off my late mother's very simple estate. Unfortunately she entrusted the solicitor to act as both executor and trustee until her house was sold. Simple enough you might say but it gives them complete power to do and charge whatever they like.

When father died the additional percentage on top of proffessional hourly rate was 0.3%. Mother made her will shortly after.

He is now charging 1.5%. Five times more!!

The property is now worth almost 4 times more than it was then. They have explained it as inflation but that woks out at around 2000%. Of course the hourly rate has more than doubled too.

Most of the hourly charge consists of logged calls and letters in units of 3 or 6 minutes not actual proffessional time.

Furthermore, when I (politely) queried the intrim invoice and his accounting, he wrote a very nasty letter in which he accused me of being aggressive and threatened that time taken to do this would double the bill.

This solicitor is a disgrace to the profession. Does the Law Society condone this sort of behaviour?

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owlette

Feb 21, 2010 at 17:40

In the following commentary any references to 'he' or 'him' also refers to she or her, except where it refers to my late Mum.

I was heartened by Lorna Bourke's article - at last someone in a professional advice field in the commercial world has understood the situation re solicitors' powers in the field of probate - aptly summarised in her short answer to the question.

Solicitors will not tell those of us drawing up a Will that if they are appointed by us as executor then, upon obtaining probate after our death, they become what is known as the 'client' of the estate. What does this mean? It means that they are giving legal advice and making recommendations about the estate's administration (as lawyer) at the same time as 'receiving' legal advice and deciding upon those recommendations (as executor)! The original client is dead, notwithstanding the existence of the Will. Meanwhile, once probate has been obtained, as the 'client' of the estate, the lawyer - unless it can be proved he committed a crime with the estate funds - cannot be held to account by the beneficiary to whom the funds of the estate are largely bequeathed! This scenario is particularly poignant if the lawyer executor who is the 'client' of the estate was also the one who drew up the Will (which is invariably the case).

Imagine the equivalent combined adviser/client role happening in, say, banking now (Nick Leeson - eat your heart out!); it would never pass the Compliance laws and protocols that have been evolving since BCCI, Barings, etc.

As sole residuary beneficiary in an estate that is straightforward (eg no debts, no tax problems, no company entailed, no foreign property), I have had to learn the implications of this lawyer/executor scenario the hard way. My late Mum's lawyers managed to convince her that they and not I should be Executor; as she was of the generation that looked up to men and looked up to lawyers, she trusted them. Since her death those lawyers have treated me in ways that have been nasty, brutish and long. I repeatedly asked for interim accounts and they repeatedly refused to provide them to me, even though I have since learnt there have been three interim accounts. How can the lawyer/executor be accountable to the residuary beneficiary under these circumstances? Clearly he cannot. And apparently it's all legal.

I am ashamed of my country for continuing to allow such hard-nosed manipulation of what have been hard-earned assets to be possible within the legal 'profession', and thereby tempting for the unscrupulous, because the practice is fundamentally unfair, unreasonable and unprofessional. But as lawyers currently continue to regulate themselves (I have also had to learn that the Legal Complaints Service is not "independent" in the concrete way it has handled my case and when I applied to the Ombudsman yet another lawyer - not the Ombudsman - made the decision against my application!) they are not minded to change such a powerful aspect of their privileged operations.

My advice to anyone drawing up their Will? Assuming they are not vulnerable adults, make your beneficiaries your executors and make your executors your beneficiaries (not just your sons, but your daughters too). And if legal or other advice is needed in handling the estate after your death, your executors who are also beneficiaries can go to a specialist, eg a lawyer, in which case your beneficiaries who are executors will also be the client in the matter; the lawyer will not be the client! The lawyer will be the service provider, and in my view that is the role to which lawyers should be limited. And as has rightly been pointed out by earlier contributors, your service provider can be held to account. But any lawyer putting himself in a position of being appointed as lawyer/executor knows that the main people that the Will-maker has in mind and in their Will to benefit will not be able to hold that lawyer to account. Trust is fundamental in the appointment of executors and unfortunately not every lawyer can be trusted.

I have become aware that mine is not an isolated case by any means and I just wish and hope this dreadful situation re lawyer/executors is made impossible, and soon. I don't want more grieving beneficiaries to suffer in the way I have suffered at the unscrupulous hands of indecent lawyers.

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Julie

Mar 09, 2010 at 21:31

There are lots of great sites on the web to help and I am currently using one called www.probate.cc that is really useful

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Lawel Smith

Apr 29, 2010 at 12:57

I am so happy to this post this will definitely going to help for who suffer form excessive charges for financial issue.

you can also find solicitor for uk visiting: http://www.humphreys.co.uk/

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Anonymous 1 needed this 'off the record'

Dec 02, 2011 at 16:29

Solicitors have dragged out my mother's probate for a tiny estate for almost a year. I am fearful I will not see a penny after their exthortionate fees. It is immoral they are allowed to behave this way, the government should put a cap on probate fees and then I am sure we would see them work a lot quicker without the financial carrot.

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David Rose

Dec 18, 2011 at 21:03

I read the above comments because of my frustration at not being able to verbalise my views towards my family's solicitors as money left to us

children gradually diminished whilst in their care.

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