Solicitor slow over probate

sdooley

The inheritance tax here may be avoidable up to double the nil rate band. It is possible for the executors of your Mother's estate to step in the shoes of the executor's of your father's estate and re-write his will so that his property went not to your Mother but to you all.

This is done by way of a deed of variation (under s.142 Inheritance Tax Act 1984). If your Dad's property exceeded the nil-rate band (or your Mum's, ignoring your Dad's) it may not get you out of IHT completely. But it could significantly reduce the bill.

You need the advice of a solicitor to do this as it is not simple. But maybe not the one you are with at the moment. The deadline is very strict - 2 years from the first death.

This provision existed for a long time previous to the recent reforms, so will be available to you. But don't miss the deadline!

Errata

Very sound advice from sdooley, and it should have come from the solicitor !

sloughflint

Superb post,sdooley.
OP, you have now perfect ammunition to get away from this dreadful 'executor' and save significant IHT in the process.
You can now enjoy your birthday.:j

sdooley

The executor won't/can't resign as executor (unless he gets the court's permission) until the estate has been fully administered, if he has got probate.

But there's nothing stopping the two executors agreeing to appoint a seperate firm of specialist solicitors (or even a bank, though that would be more expensive) to handle the administration, with the current [STRIKE]muppet[/STRIKE] solicitor just doing the sign-off at the end. I always think it's cheaper to get a local accountant to do the estate accounts too - solicitors aren't necessarily so good with numbers and the accountant may swing a few quid saving on the income tax/cgt in the admin period.

sdooley

Errata wrote: »

Very sound advice from sdooley, and it should have come from the solicitor !

Thank you but this is not advice, just general discussion...:j

sloughflint

OP should surely expect not to have to pay this incompetent for his unhelpful services.

ukmaggie45

Hello all, and thank you all very much for your discussions.

Am a little overwhelmed by everything I am learning.

Husband gone to see the Klimt exhibition at Tate. I was too knackered to go.

All I can say now is I'm very grateful for all messages and discussion I've read. Will let you all know how things go over the next few days/weeks/months (hopefully not years!!)

Thank you to the last few posters who I didn't manage to reply to yet... I only have a small window of opportunity each day when I can take in things and begin to understand. Brainfog.

Best wishes to all of you.

sdooley

sloughflint wrote: »

OP should surely expect not to have to pay this incompetent for his unhelpful services.

Of course everyone would like something for nothing!

He'll have done some work to progress the estates in this time - if you get too sniffy about the historic fees you'll never get anything done. Chalk it down to experience but chip a discount. Set a limit for any future fees. It's only just over a year - doubt anyone would be able to complete two successive estates in that time - but with the tax issues etc there is no shame in handing over to a specialist at this point.

You'd have a hard time arguing professional incompetence at this stage - if you get the files over to your preferred firm and they say he was incompetent then that's something different, but just not being communicative enough doesn't mean he hasn't done the paperwork well.

The solicitor was appointed by the parents, who will have provided for fees to be paid in the will. Unless you can prove that wasn't communicated to your parents (and I'd imagine they'd definitely have expected the solicitor to charge to administer their estate) your only real grounds to argue are about the amount of the charge, not the right to charge.

The priority is finding someone your whole family trusts to advise and getting them in charge.

localhero

sdooley wrote:

You'd have a hard time arguing professional incompetence at this stage

Failing to advise the client of a potential £100,000 saving in IHT is pretty incompetent in my view. :eek:

The real difficulty is getting him removed as an executor. I think one option is making a lot of noise/threats to complain to the Law Society with a view to getting a reduction in the bill.

If the solicitor is hanging on to the money in his client account simply because of fear of a claim landing within 6 months of probate he could release some funds to the beneficiaries and advise them of a potential threat (that may or may not materialise) and get them to indemnify him should a claim arise.

I think if it was me, I would be tempted to apply to get him removed altogether, but the OP might find that things get even more messy and complicated so I think in balance should just play hardball with the solicitor after gaining some guidance from the Probate Registry.

sdooley

localhero wrote: »

Failing to advise the client of a potential £100,000 saving in IHT is pretty incompetent in my view.

:eek:

Yes but he still had over six months, so no loss has been caused yet. I'm not defending him, just that he has a legal right to do this work and hasn't been negligent as yet (no loss has been caused and no undue delay - that's what he would argue).

The real difficulty is getting him removed as an executor.

Probably an impossibility at this time, but the threat hangles implicitly over him, like a sword of Damocles. If you make the threat explicit, he will likely fight as he has a duty to perform....

I think one option is making a lot of noise/threats to complain to the Law Society with a view to getting a reduction in the bill.

Again the threat may cause as much response as the action. It's the Legal Complaints Service / Solicitors Regulation Authority now not the Law Society. Taking a complaint is tempting but it will likely just delay things further. Even just getting the solicitor's boss / senior partner to look over his shoulder would be a good thing.

If the solicitor is hanging on to the money in his client account simply because of fear of a claim landing within 6 months of probate he could release some funds to the beneficiaries and advise them of a potential threat (that may or may not materialise) and get them to indemnify him should a claim arise.

There are two issues here, cashflow and liability. They haven't sold the house yet so some of the cash may be needed to meet expenses (especially IHT) as they arise. Of course the executors could raise bridging finance against the house but what's the point in that?

On liability, solicitors can take an indemnity from beneficiaries but what if the beneficiaries spend the money - it's not good business to sue your customers.