The Lemon Fool

A relative has told me that in the protracted dealings with a deceased aunt's estate they have taken their fees from a cash asset before the whole
process has been completed.

I thought fees were settled at the end of the process. Are they withing their rights?

Is there a disagreement about the level of fees for the work to date? Do you think they are responsible for protracting the process? If not unless there's some agreement to the contrary there's no reason not to request/require interim payment especially if it's as protracted as you imply.

quelquod wrote:Is there a disagreement about the level of fees for the work to date? Do you think they are responsible for protracting the process? If not unless there's some agreement to the contrary there's no reason not to request/require interim payment especially if it's as protracted as you imply.

If I counted the number of negatives in your last sentence correctly (I made it three) then I'd agree there is no reason why a solicitor cannot ask for interim or periodic payment for work that is taking a long time.

That doesn't mean they will get paid, however. The original question mentions that this is a probate case and, typically, the solicitor will be paid at the end simply because the assets of that estate are in limbo. Financial institutions will usually not release larger sums in accounts until probate is granted. For similar reasons, funeral directors will often proceed with a funeral on the understanding that they will be eventually paid out of the estate. Effectively the funeral director and the solicitor both become creditors of the estate.

The procedure may also depend on whether the solicitor is also the executor, or whether the executor hired the solicitor to do the work on his/her behalf. If the latter then interim payments might be agreed.

I'm a little confused about the term "cash asset" in this context. What cash asset is that and why is not frozen pending probate being granted?

"If I counted the number of negatives in your last sentence correctly ...

Heh
But in my defence I'd say that 'no reason not to' isn't the same as 'a reason to'.

Lootman wrote:The original question mentions that this is a probate case and, typically, the solicitor will be paid at the end simply because the assets of that estate are in limbo.

No, this isn't the case. As administration can take a year or more to complete most firms will want to submit an interim bill once probate is granted.

The grant enables bank accounts to be closed and other assets to be sold, so that there's cash in the estate to pay the bill. However, it's often the case that there is, for example, a house to be sold that could take months, or even years, so depending on the time and the amount of work carried out there could be several interim bills before the final one.

But a solicitor can only take payment from cash held if the bill has been agreed by the client. He can't just help himself. If he's the executor he should obtain agreement from the residuary beneficiaries before deducting payment.

Clitheroekid wrote:As administration can take a year or more to complete most firms will want to submit an interim bill once probate is granted.

I agree an interim bill can be submitted. I was pointing out that there may be no monies to pay that account until probate is settled. There is no guarantee that either an executor or a beneficiary has the funds to pay until probate is granted.

On the one occasion that I (as an executor) hired a solicitor to perform probate, he was happy to wait and be paid when it was all over. I suspect what was more important to him was that he knew there was sufficient value in the estate, after taxes and debts were paid off, to assure he'd be paid.

Clitheroekid wrote:The grant enables bank accounts to be closed and other assets to be sold, so that there's cash in the estate to pay the bill. However, it's often the case that there is, for example, a house to be sold that could take months, or even years, so depending on the time and the amount of work carried out there could be several interim bills before the final one.

That's understandable. However in the case I cited above there was a house to be sold and the solicitor was still happy to wait for that. Perhaps it helped that I gave him the conveyancing work, so that he had extra revenue and also knew the state of the sale throughout?

Clitheroekid wrote:But a solicitor can only take payment from cash held if the bill has been agreed by the client. He can't just help himself. If he's the executor he should obtain agreement from the residuary beneficiaries before deducting payment.

I certainly would hope so.

I agree an interim bill can be submitted. I was pointing out that there may be no monies to pay that account until probate is settled. There is no guarantee that either an executor or a beneficiary has the funds to pay until probate is granted.

Despite what was written earlier, the OP did not mention Probate.

However, he did mention a cash asset, which one can only assume has been realized and the monies are available, which may well be sitting in client account or in an executor account. Perhaps that is from where the solicitor has taken his fees, most likely after probate has been granted but before the "process" (the word used by the OP) has been completed.

PinkDalek wrote:Despite what was written earlier, the OP did not mention Probate.

The OP stated that "A relative has told me that in the protracted dealings with a deceased aunt's estate . . . ". What could that be, if not probate?

PinkDalek wrote:However, he did mention a cash asset, which one can only assume has been realized and the monies are available, which may well be sitting in client account or in an executor account. Perhaps that is from where the solicitor has taken his fees, most likely after probate has been granted but before the "process" (the word used by the OP) has been completed.

You may be correct. But if the solicitor has grabbed some cash from somewhere then, as CK said, approval from the executor or residual beneficiaries would still be required. But I'd agree that we have insufficient information here.

Lootman wrote:

PinkDalek wrote:Despite what was written earlier, the OP did not mention Probate.

The OP stated that "A relative has told me that in the protracted dealings with a deceased aunt's estate . . . ". What could that be, if not probate?

All sorts of things - a protracted house sale has been mentioned. Other possibilities for protracted dealings after probate has been obtained include selling or winding up a company owned by the deceased, recovering assets from abroad, dealing with legal disputes about how the executors distribute the assets, etc. Getting probate could be a very minor part of the work done by the solicitor - or in extreme cases none of it at all (e.g. executors find they need the solicitor's services only after getting probate themselves, or after becoming dissatisfied with a previous solicitor).

Gengulphus

Gengulphus wrote:All sorts of things - a protracted house sale has been mentioned. Other possibilities for protracted dealings after probate has been obtained include selling or winding up a company owned by the deceased, recovering assets from abroad, dealing with legal disputes about how the executors distribute the assets, etc. Getting probate could be a very minor part of the work done by the solicitor - or in extreme cases none of it at all (e.g. executors find they need the solicitor's services only after getting probate themselves, or after becoming dissatisfied with a previous solicitor).

That is all possible, I'd agree, but they are still all related to probate. And nothing we have been told indicates that those are factors here, so you are just speculating.

I come back to CK's point that a solicitor cannot just grab money that is lying around to satisfy his invoice. He should seek the approval of those affected.

With the question I was responding to restored:

Lootman wrote:

Gengulphus wrote:

Lootman wrote:The OP stated that "A relative has told me that in the protracted dealings with a deceased aunt's estate . . . ". What could that be, if not probate?

All sorts of things - a protracted house sale has been mentioned. Other possibilities for protracted dealings after probate has been obtained include selling or winding up a company owned by the deceased, recovering assets from abroad, dealing with legal disputes about how the executors distribute the assets, etc. Getting probate could be a very minor part of the work done by the solicitor - or in extreme cases none of it at all (e.g. executors find they need the solicitor's services only after getting probate themselves, or after becoming dissatisfied with a previous solicitor).

That is all possible, I'd agree, but they are still all related to probate. And nothing we have been told indicates that those are factors here, so you are just speculating.

Asking a question about what could be and then telling anyone who answers that they're just speculating is a complete waste of everybody's time.

Gengulphus

Just to clarify. It is probate.
The aunt had cash in a savings account. It is from here that I understand that they have taken their fee.
The DWP are investigating whether or not they have a claim, which is causing further delays.
There's also a house being sold, which is taking forever.

Many thanks for your thoughts on this.

LTB

Lootman wrote:The OP stated that "A relative has told me that in the protracted dealings with a deceased aunt's estate . . . ". What could that be, if not probate?

I think part of the confusion has arisen because of a misunderstanding of the term `probate'.

Lootman seems to be using it as a blanket term to describe the administration of the estate, so that by that definition probate is only completed when the estate's completely wound up. This is more typical of the way the term is used in the US (e.g. `the estate is still in probate') from whence I suspect Lootman originates.

However, in England the term is, at least amongst lawyers, used to describe the actual issuing of the grant of probate by the court - a one off event.

So the administration of a typical estate is divided into two distinct phases. The first is pre-probate, when information is being obtained to value the estate, calculate inheritance tax and so on, all of which is designed to obtain the grant of probate. The second phase is after the grant has been issued, which is essentially realising the assets, paying the legacies and debts and distributing the estate according to the Will.

Once you have the grant of probate you can start liquidating the assets in the estate, thereby releasing cash. As I said in my original response, because phase 2 can often take months or even years it's normal practice for solicitors to submit a bill shortly after the grant's been issued so that they can have first dibs on the cash that's released. They will then often use the balance to pay individual legacies or to make a payment on account to residuary beneficiaries.

In fact it's a good tactical point at which to submit a bill, as it will often be approved quickly so that the interim payments can be released!

Clitheroekid wrote:I think part of the confusion has arisen because of a misunderstanding of the term `probate'.

Lootman seems to be using it as a blanket term to describe the administration of the estate, so that by that definition probate is only completed when the estate's completely wound up. This is more typical of the way the term is used in the US (e.g. `the estate is still in probate') from whence I suspect Lootman originates.

However, in England the term is, at least amongst lawyers, used to describe the actual issuing of the grant of probate by the court - a one off event.

I don't know what the American usage is of the term as I have no knowledge or experience of probate in the US. But I think that people in general probably use the term in its broader sense, whereas lawyers use it in the narrower sense that you described.

So on the occasion I cited earlier there were all the phases you described, including selling a property and distributing the assets. I used the term "probate" liberally to cover all of that because I used the solicitor to do all of it, and I only considered probate to be over when everyone had been paid off. The issuing of the Grant of Probate was significant but, to me, it was just one step of a multi-stop process.

The second time I handled it all myself and, once the Grant was delivered, the process was essentially over since I was both the sole executor and the sole beneficiary. I just paid myself!