Solicitor slow over probate

sloughflint

sloughflint wrote: »

The trouble is how can this be enforced?

Coming back to my own question.
I've just re-read this thread:
http://forums.moneysavingexpert.com/showthread.html?p=13984629
and an interesting new link within it:
http://www.sundaymercury.net/news/midlands-news/2008/08/17/10-000-wills-frozen-in-midlands-solicitors-probe-66331-21549253/
In particular:

The Solicitors Regulation Authority (SRA) stopped Solicitors Probate Services Ltd from dealing with probate work last month.

The firm is allowed to draw up wills – a service which is currently unregulated by the SRA.

Although OP's thread is purely about probate, I have witnessed problems with poorly solicitor drafted Wills as well as problems on the probate aspect.

In the post where I learnt that solicitors aren't obliged to undertake relevant exams, I also learnt that the Institute of Professional Will Writers were working on trying to get the will-writing profession regulated to flush out companies as described in the link.

Why can't SRA, STEP and IPW work together to ensure not only rogues like that firm but also solicitors are suitably qualified to draft Wills and deal with probate effectively?

localhero

sloughflint wrote:

Why can't SRA, STEP and IPW work together to ensure not only rogues like that firm but also solicitors are suitably qualified to draft Wills and deal with probate effectively?

An interesting prospect, but one that is very unlikely to happen.

I have very strident views on the subject, because since gaining my legal qualifications I'm in the privileged position of having worked for law firms as well as one unregulated willwriting firm, before deciding to do things ethically and professionally and join the IPW - and so I know what goes on and can be impartial.

What we've seen from this thread and the thread you've linked to, is really only the tip of the iceberg. The general public really have no idea about this state of affairs, and I suppose have a blind faith in the professionals - lawyers, doctors, teachers etc.

Thank you for at least taking an interest in the subject, which after all is quite an important one.

ukmaggie45

sdooley wrote: »

As more information comes out, this does look more and more like inadequate professional service, maybe the STEP member 'around the corner' will have experienced a few aggrieved people coming from the 2-partner practice already.

Yes, that did occur to me! Which was partly why I wanted someone nearby. Other reason is it makes it easier for STEP person to get sight of the papers, I hope. We've still not contacted them yet as want to see if accountant thinks we have a possible case first. We're seeing him on Wednesday.

sdooley wrote: »

Great book if you are thinking of doing some of it yourselves: http://www.amazon.co.uk/Wills-Probate-Inheritance-Tax-Dummies/dp/0470756292

Thanks! Ordered it and it arrived today. Not had time to read it yet. Will take me some time I think.

ukmaggie45

sdooley wrote: »

Once the mother died it made it more complex; before then you might not have thought to do anything (unless you knew she was ill).

She was in a nursing home with dementia by the time Dad died. So we did know she was ill, and also incapable of signing anything. Dad put an Enduring Power of Attorney in place 2-3 years before he died, naming Mum and my husband. Even then Mum was very suspicious of it all, and point blank refused to do one for herself.

Mum refused to allow husband to use it almost to the end, and when husband went to bank to arrange it they refused to accept her as she didn't have any identification (driving licence and passport out of date, no bills addressed to her as Dad had always paid the bills etc) so only husband was allowed at that time to access Dad's money.

He did very little. Arranged for a bond payment to be put into an interest bearing account (it had been sitting in current account for about a year). Arranged a standing order into Mum's account to pay her housekeeping. Arranged payments for Dad's nursing home bills.

Mum then went round the banks ranting that husband had stolen all Dad's money. I know that there have been cases of relatives stealing money once they get PoA, but this was emphatically not the case. Ah well, it was the dementia speaking I guess, but nevertheless very hurtful at the time. Especially since husband had been so good to them over things such as taking to hospital appointments (most requiring a full day's holiday off work for him to take them), shopping etc, when he was still holding down a full time job and looking after me (am disabled myself).

We had first meeting with solicitor in September about 6 weeks after father's death, shortly before mother died (she had been admitted to hospital the day before). One other meeting with both of us present (back in April) when we tried to find out what was happening with mother's estate.

But there's a lot of phone calls as nobody would tell us anything unless we phoned and asked. It's just about all of it documented by husband and myself in "the big book".

ukmaggie45

sloughflint wrote: »

The bank charges analogy isn't quite the same as here though is it? For me it's a question of morality rather than the monetary aspect. I still feel very guilty for allowing a professional get away with a serious mistake and be able to continue to make mistakes. I had my reasons at the time.

I don't think you should feel guilty. Life sometimes just overcomes us, and we have to retreat or just make do with the best we can manage to do.

sloughflint wrote: »

People put in OP's situation are in the end so tired with the brain ache, the hassle. It's so very tempting to let things go.I'm sure it happens a lot.

The hassle is one of the problems. And it's like getting blood out of a stone getting information from solicitor. Husband finds him not very pleasant to deal with - overbearing :mad: and we both feel he regards us as not worth the time of day. :mad:

sloughflint wrote: »

How many dissatisfied customers are there really, I wonder? If OP's solicitor had perhaps been a little more charming,convincing,he may have been able to persuade his co-executor that the timescale was adequate, OP may never have posted on here in frustration and found out that she could have saved 120k in IHT. How many others are there around?

I'm sure if he'd got stuff done and dusted in a timely manner we'd never have realised that mistakes may have been made.

sloughflint wrote: »

It's all very unsatisfactory. I wish something could be done about the global picture.
But as far as OP's concerned, I would put my faith in STEP now.

We're seeing accountant on Wed, and will make a decision concerning STEP after that. At least we both trust and like the accountant - he was amazingly kind to my parents, going well beyond his professional duty to them.

ukmaggie45

sdooley wrote: »

localhero, you're quite right it is executor and not just beneficiary who must have died, I just assumed that the father's will appointed mum as executor.

No, both parents named the same 2 executors - solicitor and my husband. Even if she had been named she wasn't fit to make any decisions by that time. We were reaching the point of applying to the Court of Protection to administer her money (to pay her nursing home costs - which I think NHS should have covered, but that's another rant! ) but she died before we even began that process.

sdooley wrote: »

I have been involved in a case of successive deaths and it was not simple to deal with and a grant de bonis non was required - apologies for making assumptions and not looking up chapter and verse but as I said above, nothing posted on these boards is advice, just discussion. Hopefully highlighting the possibility of the DoV was of assistance - as you say a further grant may not be necessary, it depends on who was the executor.

Sorry to hear that you were involved in a complicated case - my one should have been easy, but it's been made worse by the professional who is supposed to have made things easier for his client at a difficult time.

sdooley wrote: »

What needs to be done is a widening of the pool of people working in the area (the high fees seen are a symptom of the shortage of probate practitioners) together with good oversight of matters by relevant professional bodies - ultimately also the expansion of STEP to the stage where it is no longer just seen as an ivory tower but a course which every self-respecting practitioner in the field would undertake. It's less expensive than one year of an undergraduate degree and open to everyone - lawyers, accountants, stockbrokers, willwriters and bank staff.

Have to say that there's no way I will be getting a solicitor to write my will or administer my estate now! Will be looking for people who are qualified in the writing of wills.

sdooley wrote: »

As for being practical versus taking a complaint, isn't it possible to do both? i.e. be practical until you get the estate sorted (at least things are getting moving now) then put a complaint in for inadequate professional service or whatever. Just don't sign a discharge for the executor until you are satisfied.

Thank you very much for pointing out that we need to be very careful what we sign. We are becoming much more careful already!

sdooley wrote: »

I'm not a qualified STEP member and I don't currently work in that area of law (but might hope to in the future) but hope my contributions have been helpful. As it's getting personal I'll leave the thread.

Your contributions have indeed been very helpful, and I do hope that you will change your mind and continue to contribute.

Thank you :A

ukmaggie45

sloughflint muses on sdooley's suggestion that a complaint could be made later on

sloughflint wrote: »

I'd been wondering about this.The 'deal' I did was my very first introduction to the dubious world of solicitor antics.
OP needs to be aware that, if my experience is anything to go by, the firm will be very keen to get a signature stating that the matter will not be taken further. If OP could be prepared for this and resist signing then in months after things have relaxed, if she feels so inclined, she could perhaps try and get this man's professionalism and competence investigated.Hopefully the STEP member will advise on the best way forward.

We will be VERY careful of what we sign. Well, husband will - he's the client, I'm not I guess. He certainly wouldn't agree to sign anything without giving me a sight of it first. Yet another reason for me to not go to further meetings.

I have to say that given his manner towards us, I do have some concerns about how he is with other people. We have heard a few things off the record, but prob best not to go into them at present.

sloughflint wrote: »

Also I am concerned that this man will still be difficult and waste time arguing with a specialist. I've seen this happen.

Oh yes, I'm sure he will argue. We had a helluva job getting mother's income tax assessment done and sent off for the previous year (it went late) as accountant didn't have access to the papers for quite a while. But we will persevere! :rolleyes:

sloughflint

You certainly have had a hard time of things even before your parents died.

Reading your latest posts, it just crossed my mind that the solicitor maybe didn't consider the DOV ( including a DT at that stage) because of your mother's mental health ( as beneficiary, she should have signed the document) but I soon reminded myself that the solicitor had said to your husband last week that there was no point as there'd be no IHT saving and in any event, if he wasn't instructed until a matter of weeks or days before your mother's death, he should have been on the ball. There is no doubt at all that he is incompetent.

ukmaggie45 wrote: »

And it's like getting blood out of a stone getting information from solicitor. Husband finds him not very pleasant to deal with - overbearing :mad: and we both feel he regards us as not worth the time of day. :mad:

I do feel for your husband. It's enough to put him off accepting a role of executorship ever again, having to deal with this repugnant as well as incompetent individual.
I keep trying to put myself in his shoes and wonder what I'd do. I know the solicitor is behaving as though he was the sole executor but of course he isn't. Your husband is co-executor so has a say and should be able to access all paperwork relating to the case, I'd have thought. I would ask for the file to be released to me in the first instance I think so that I could examine it closely.

ukmaggie45 wrote: »

We're seeing accountant on Wed, and will make a decision concerning STEP after that. At least we both trust and like the accountant - he was amazingly kind to my parents, going well beyond his professional duty to them.

You seem to be hesitating about the STEP aspect.
Although it now looks as though things could be quite straightforward, it all hinges on a DOV. Perhaps someone will correct or confirm but I have vague memories that you only have one chance at this ( eg, all the beneficiaries of a Will being in agreement, cannot then change their minds again and do another DOV within the 2 year window). Your solicitor is clearly not up to the job so I wouldn't let him attempt to do it. I cannot see how you can just deal with the accountant. I believe that a DOV is a legal document.
Judging by localhero's post, a STEP member may not be necessary but knowing what you do now about the state of the profession, do you want to take a chance with another probate solicitor who may or may not be relevantly qualified?

The other point that I keep thinking about is how you are going to get the overpaid £120 000 back. Is it just a question of contacting HMRC and completing new IHT forms and arranging for a return of overpaid taxes or will it have to be claimed out of the firm's indemnity insurance? If the latter then I suppose there is no choice but to go down the complaint route sooner rather than later. But remember not to sign anything;)

localhero

sloughflint,

A Deed of Variation must be executed by those giving up a benefit under a Will or intestacy, and not all of the beneficiaries as is often incorrectly stated.

If the solicitor had spotted the possibility of doing this after ukmaggie45's father died, then her mother would have needed capacity to execute the Deed. In the absence of that, and even with a registered Power of Attorney, then an application would have had to have been made to the court to do so.

When her mother then died, this actually made life a little easier to draw one up. Where the second spouse has died within the required two year period to benefit from the tax advantages, their executors can enter into a variation instead.

Generally the executors are a party in any case, though usually out of courtesy.

The law says that a Deed of Variation can only be drawn up by a solicitor, though an 'instrument of variation' (essentially the same thing) can be drawn up by anyone capable of doing so.

It is possible to have more than one variation in an estate, but each variation must relate to different assets. There cannot be a further redirection of an asset which has already been varied.

Unfortunately despite the incompetence of the solicitor who is one of the executors, unless he is legally removed by making an application to the court, he will have to be a party to the Deed. Therefore the estate will inevitably suffer the added cost and complication of one solicitor having to communicate these requirements to the incompetent who should be drawing it up in the first place.

Ukmaggie, I think in all of the circumstances it might be an idea to obtain the services of a second professional and keep the original guy on board (rather than remove him completely), to complete the estate administration as soon as possible and avoid any more complications. Obviously once the matter is concluded, I would look at complaining and obtaining a reduction in his fees.

You will really need to satisfy yourself that your second solicitor is clued up. What you really need him or her to be saying is that the parties to the Deed must be:

• the executors of the second estate
• the beneficiaries of the second estate
• the executors of the first estate

The persons concerned should be listed as separate parties, even if they are one and the same person.

As there has been an overpayment of IHT, notice of the Deed of Variation will need to be given to HMRC along with a claim for its repayment.

Good luck with everything ukmaggie.

ukmaggie45

Many thanks for your replies, sloughflint and localhero. Will let you know how this afternoon's meeting goes. Will reply better when have more time - have to start sprucing up for the meeting!

Husband has been drafting second letter of complaint to solicitor, but it still needs work. To be honest all of this is starting to do my head in. Hopefully we'll get some useful information from today's meeting.

Better go and run the bath!