Executor obtaining copy of Will

[Fourcats]

Hello, I would appreciate some advice on a problem I have encountered whilst trying to apply for probate for my late Father.

I am co-executor with my brother but we haven't really had much to do with each other for years ( I think Dad thought doing this would help the brother/sister bond) My brother took charge of probate when Mum died as I was busy looking after Dad and was happy to leave him to it but unfortunately, I had some serious concerns regarding his handling of the process. However, as it was upsetting Dad, I didn't take things any further.

My brother initially wanted to act alone dealing with Dad's estate but agreed to act with me when I said no to him doing it on his own. He then decided I could act alone and he would keep power reserved. The next thing I get is a letter from his solicitor saying that they had been instructed by my brother to assist me with the process as he couldn't work with me because of "issues" between us. I still have no idea what they are. Anyway, initially they wanted me to appoint the solicitor as my attorney as it would make things easier for me, apparently - I said no to that one, as not only do I want to do this for Dad but it's also a very simple estate. Dad was in a care home for some years before he died, there are only various accounts and investments to collect into the estate and, as I had been his attorney for some 10 years up until his death, I'm fully conversant with his financial situation.

The solicitor has continued to try and pressure me into giving up my executor role and when I have put forward suggestions for moving things forward, I act with them, we both appoint an independent third party to deal with the estate etc, my offers are rejected without any reason as to why other than saying their client doesn't agree. We did reach a point a month ago where the solicitor advised that my brother agreed I could act alone, with him having power reserved, on the proviso that I would pay the estate monies into their Client Account for them to distribute. I agreed, thinking this would at least get things moving but then, in the next breath, I'm told that they also wanted to complete the application and collect the monies, so in other words do everything and so I'm back to square one. The other concern I have is that they are very reluctant to give me any idea as to what this is going to cost the estate, saying they wont know until they've completed the application by which time I feel it would be too late to contest their fee if they've already started working on the case but perhaps this is normal for probate?

I feel that I have been penned into a corner and will have to use their services, even though i haven't had a choice over instructing them. They are also the solicitor my parents used to draw up their Wills and so are holding my Dad's Will. I have asked for it, as I had completed the probate application and IHT forms some months back before things blew up and all I needed was the Will and could then have sent the application off but they refused to release either the original Will or provide me with a certified copy, stating that their client wouldn't allow them to release it unless I agreed to their "assistance". I then asked for just an ordinary copy so I could at least check the situation regarding beneficiaries etc, as I only have a draft of the Will, not an executed copy but again, they will not provide one to me.

I do apologise for this lengthy tale of woe but my question is, as an executor, do I have a right to be given a copy of the Will and if so, how should I go about exercising that right?

Any advice would be very much appreciated, thank you.

[des8]

What a distressing situation.

If it was I, I would be telling that solicitor that I did not need his help and if he continued to withhold the will I would either lodge a caveat to prevent your brother obtaining a grant, or warn them that if they obtained a grant I would immediately apply for a Grant of Double Probate.

However Peridot will have more sensible advice

[Fourcats]

Thank you for your reply Des8. I’ve not heard of Double Probate. I’ll have to look into that. I’d like to think the solicitor wouldn’t encourage my brother to apply for probate when I’ve made it very clear I want to act as well but I have no confidence in them at all, to be honest.

[Peridot]

Hi Fourcats,

How awful for you. The problem the solicitors have is they can only act on the instructions of the executors if they are in agreement. They already know the executors are not in agreement so they can not be seen to be favouring one or the other of you. If the matter can't be resolved and agreement reached then either you both instruct another lawyer to deal with the matter who will then request the Will from the firm with both your written authority to do so. They can then not refuse to release the Will to the new law firm. Or, if agreement can't be reached they could send the Will to the Probate Registry to be held there. This article may help you understand the issue here:- https://www.wilkes.co.uk/being-pulle...rs-in-dispute/

I suspect this is more the reason why they won't release the Will, rather than holding you to ransom to instruct them to deal with the estate. In any event they should give you a quote for the work in obtaining probate. In fact they are expected to.

It can be difficult to quote for the whole matter there are so many factors that come into play, the sorts of investments involved, whether there is likely to be a claim against the estate the amount of debt to be finalised, whether notices are required to check whether there are any creditors etc but they should give their best estimate on the basis of the information they have. Quotes can also be broken down into sections, such as up to the Grant and work afterwards collecting in assets. Many law firms will agree to just prepare some of the documents necessary to get the Grant on the proviso all the information gathering is done by the executors and passed to them. So there are many ways to deal with the charges aspect and it is always worth asking in they can bundle parts of the process.

In some ways there is some reassurance if you had lawyers dealing with the estate on behalf of the executors, as you know things should be dealt with appropriately. You can both stay as executors and will both be required to sign the Oath and agree any accounts etc. The issue of instructing lawyers to deal can be the cost, which is even more worrying when they won't give you an indication of what they may be. Any cost are of course paid from the estate which in turn reduces the residue available to be paid out to the beneficiaries.

They can't apply for probate without your authority so nothing can happen at the moment until some agreement is reached.
You are sure they were not appointed co-executors with you and your brother under the Will? Even if they are not it may be worth thinking of instructing lawyers to deal with the estate. Where the co-executors are not in agreement it is sometimes less stressful and time consuming to allow the lawyers to deal (with a quote beforehand mind!)

If you know how many accounts your father had and an overview of any other property of assets you try and get a quote from the solicitor for the work needed to apply for the Grant and gather in the assets before distribution. It would be worth your obtaining quotes from another couple of law firms to maybe. Could your brother be persuaded by a cheaper option if you were to both agree to a different lawyer dealing with the estate whilst retaining you both as executors? Both your signatures would be needed for the Oath but the lawyers would in effect deal with all aspects of the administration. I would say that if issues arise between co-executors and the lawyer is stuck in the middle then costs will inevitably rise too I'm afraid, something to be wary of. In the long run though it can be more sensible to let a lawyer get on with it if you both agree to their instruction.

Provided the current lawyer has both your authorities to release the Will whether to one of you or another law firm, then they can't refuse.

[Fourcats]

Hi Peridot

Thank you for your very comprehensive and helpful reply and for the useful link, too.

I can understand that the solicitor is somewhat stuck between a rock and a hard place whilst the disagreement between myself and my brother rumbles on. They have not been appointed as joint executors, Dad was only too well aware of how much it might cost if the solicitor acted as Executor, ironically!

I also agree that it would be better if a solicitor dealt with the whole thing, given the situation and have previously suggested to my brother that I get some quotes from other law firms with a view to them acting for both of us. Unfortunately, his reply has always been routed through the solicitor to the effect that he wants them to deal with it. I can perhaps see why, in a way, as he is literally round the corner from their office, whereas it's a 50 mile journey each way for me. Maybe he also thinks, because they hold the Will, they may as well deal with it.

On the subject of the Will, I can see that they cannot release the original Will to me in the circumstances but in their latest letter, they wanted me to go in to their office and sign an oath for them to send off with the probate application. However,t as I haven't seen the Will at all, only a draft version that is 15 years old, I don't see how I can do that without an opportunity to see the executed Will first, hence my request for a copy.

I would be more inclined to agree to them acting if they were more transparent with their costings. I do understand that it will only be an estimate but it is a simple estate, as all Dad had were various savings accounts, all of which I have listed on the spreadsheet I kept when acting as his attorney. (I have already supplied a copy of this to my brother) I have asked for an estimate, or at the very least, details of their charging basis, as I don't even know whether they charge by hourly rate, or a percentage of the estate worth, or both, for probate cases.

I think that perhaps, as a first step, I should go back to them again and make it clear that I require an estimate of costs before this goes any further.

Anyway, thank you again for the advice, it is very much appreciated.

[Peridot]

Hi again,

I would definitely contact them again, if they wish to act you are entitled to a client care letter, terms of business and confirmation of charging rates etc They shouldn’t act without signed terms of business back from you. Well they can but there is no contract agreed by both sides so they can’t then bill the executors.

If they expect you to swear the oath, if you decide to let them act of course, then you should see all the papers, including the Will and inheritance tax forms that are being sent to the Probate Registry, before you can do so. As executor you need to approve them before signing. Maybe ask them to see copies before you commit to traveling to swear the documents? Although without committing to instruct them they may refuse.

I wonder if the document you prepared with all the values has been used by them? In which case what work other than completing forms have they done. The bill, if you decide to instruct can of course be questioned as to exactly what time they have spent and on what activities, but that is down the line of course and doesn’t necessarily help now.

I would get back in touch with them as you suggested and see what the response is about client care, terms etc. They may not have realised you were not in agreement to allow them to act if your brother made first contact. The situation may not have been explained to them? Purely speculation and all you can do at this point is ask the questions.

Here if we can try and give any more pointers.