Advertisement
If you have a new account but are having problems posting or verifying your account, please email us on hello@boards.ie for help. Thanks :)
Hello all! Please ensure that you are posting a new thread or question in the appropriate forum. The Feedback forum is overwhelmed with questions that are having to be moved elsewhere. If you need help to verify your account contact hello@boards.ie

Original will - normal billing?

Options
  • 20-07-2019 11:27am
    #1
    sundodger5
    Registered Users Posts: 1,137 ✭✭✭


    I am executor of my father in laws estate.
    I am currently starting the process of probate and contacted the solicitor who has the will with a view to getting the original sent out to me. I will be engaging a different law firm to do the probate/conveyancing etc.
    When i rang asking for the will i was told he could not send it out without written instruction, this was provided.
    I arrived home to a bill from this solicitor for in excess of 1000 euro, no will.
    The bill includes, the original cost of drafting the will, phone conversations with my father in laws children etc. The kicker was an item for 16 odd euro plus vat for reading the letter he asked me to send to release the will.
    is this usual considering other than being the solicitor who drew up the will he was never engaged by myself.
    If this is usual then so be it, just seems a bit off to me.
    Thanks for any advice.


Comments

  • Options
    #2
    nuac
    Moderators, Society & Culture Moderators Posts: 6,769 Mod ✭✭✭✭nuac


    Mod
    The solicitor who drew the will and attended to it's execution etcis entitled to a reasonable fee for that( if not already paid ) plus a reasonable for for custody of it. Any dispute re further charges should be referred to the Law Society


  • Options
    #3
    Marcusm
    Registered Users Posts: 10,184 ✭✭✭✭Marcusm


    Bit of a chicken/egg situation. Those fees were presumably chargeable to the deceased and/or to be borne by the estate. If the presumed executor does not get the will, how can they establish that they are the executor. I would have thought that a reputable solicitor would send such billings with the original will and state that they are to be discharged out of the estate.


  • Options
    #4
    Shelflife
    Registered Users Posts: 3,073 ✭✭✭Shelflife


    Surely the charges for the original will would have been paid for at the time ?

    Why would the solicitor seek to have the estate pay for bills for third parties ie the father in laws children ?


  • Options
    #5
    Victor
    Registered Users Posts: 78,247 ✭✭✭✭Victor


    Shelflife wrote: »
    Surely the charges for the original will would have been paid for at the time ?

    Why would the solicitor seek to have the estate pay for bills for third parties ie the father in laws children ?
    Often a solicitor will have an arrangement with a testator that there is no up front fee and that the solicitor will get their fees from administering the will.


  • Options
    #6
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    I would think the sensible thing to have done was to have the new solicitor write to the old solicitor, requesting a copy of the will and associated files. You should only deal with the old solicitor through the new one.


  • Advertisement
  • Options
    #7
    sundodger5
    Registered Users Posts: 1,137 ✭✭✭sundodger5


    Exactly what i have decided to do. Let the two firms sort it and this at least will move things forward.
    Thanks all for the responses.


  • Options
    #8
    my3cents
    Closed Accounts Posts: 9,764 ✭✭✭my3cents


    Is it actually legal to withhold a will because you haven't been paid?


  • Options
    #9
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,710 Admin ✭✭✭✭✭hullaballoo


    Well, it doesn't have the same implication as it might for other professionally drafted documents. But yes, solicitors have possessory title over documents, including whole files, for which they have not been paid called a lien.

    It operates in the same way any other seller's lien works e.g. if you leave your car into a mechanic, s/he is entitled to keep the entire car until paid for the work done, notwithstanding that the work done might only be valued at a fraction of the overall value of the car etc.

    The difference between a will and other kinds of documents solicitors might handle is that it may still be a valid will, if properly executed but not paid for by the client. The lien is effectively useless because the solicitor puporting to exercise it is simply keeping safe the will that would have to be kept somewhere safe anyway.

    Bit pointless.


  • Options
    #10
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    Not quite pointless, since exercising the lien involves more than simply keeping the will safe; it involves refusing to hand it over to the executor, which has the consequence that the executor can't take out a grant of probate and get on with administering the will.


  • Options
    #11
    my3cents
    Closed Accounts Posts: 9,764 ✭✭✭my3cents


    Peregrinus wrote: »
    Not quite pointless, since exercising the lien involves more than simply keeping the will safe; it involves refusing to hand it over to the executor, which has the consequence that the executor can't take out a grant of probate and get on with administering the will.

    So its perfectly legal to prevent the administration of a will because you are owed money?

    What is to stop an "executor" carrying on as if there is no will?


  • Advertisement
  • Options
    #12
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    my3cents wrote: »
    So its perfectly legal to prevent the administration of a will because you are owed money?
    Short answer: Yes. That's the whole point of the solicitor's lien on files and documents; to give him leverage to get payment.

    Longer answer: when it comes to a will, there's a bit of a chicken-and-egg situation in play. The fees due to the solicitor are a liability of the estate, and the executor is bound to discharge them out of the assets of the estate. But he can't do that until he gets a grant of probate, and he can't do that until he has possession of the will. So the executor needs to talk to the solicitor and enter into some arrangement satisfactory to the solicitor that assures him he will be paid what he is owed once the grant of probate is obtained.

    (Of course, all this could be avoided if the testator simply pays for the drafting of the will at the time it is drafted. Dealing with somebody's death is usually distressing enough without having to clean up messes from disputes over their legal fees. Do not do this to your next-of-kin.)
    my3cents wrote: »
    What is to stop an "executor" carrying on as if there is no will?
    He will find it very difficult to get a grant of probate without producing the original will to the probate office.


  • Options
    #13
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,710 Admin ✭✭✭✭✭hullaballoo


    What your long answer says to me is, it would be a bit pointless to purport to exercise a lien over a will.


  • Options
    #14
    ohnonotgmail
    Registered Users Posts: 40,153 ✭✭✭✭ohnonotgmail


    Is it a regular occurence for drafting fees for a will to not become payable until the death of the testator?


  • Options
    #15
    my3cents
    Closed Accounts Posts: 9,764 ✭✭✭my3cents


    Peregrinus wrote: »
    ...


    He will find it very difficult to get a grant of probate without producing the original will to the probate office.

    This is only for the sake of argument but what is to stop someone saying there isn't a will and proceeding as if there isn't a will.

    I nearly had all the documentation sorted for my fathers estate on the assumption of no will because my mother insisted there wasn't one. I took the initiative and checked with a solicitor who I know had done some other work for my father and there was a will (and my mothers :rolleyes:). The outcome would have been the same either way.


  • Options
    #16
    Peregrinus
    Registered Users Posts: 26,056 ✭✭✭✭Peregrinus


    my3cents wrote: »
    This is only for the sake of argument but what is to stop someone saying there isn't a will and proceeding as if there isn't a will.
    If they know their actually is a will, the laws on perjury might give them pause for thought before they swear that they believe there isn't one.

    Plus, if they say there's no will, they can hardly say that they are the executors named in the will, and so entitled to administer the estate. If there's no will, it's the next of kin who is entitled to be appointed administrator of the estate. That may be someone else. Plus, regardless of who is appointed, they'll have to administer the estate in accordance with the rules that apply on intestacy. The people entitled under the terms of the will are (a) cheated by this, and (b) likely to be very angry if/when they find out that they have been cheated, and (c) quite likely to do something about it.

    So, basically, honesty should stop them doing this. And, if honesty doesn't, a desire not to face bankruptcy and/or prison will.

    Just pay the damn fees already.


  • Options
    #17
    Claw Hammer
    Registered Users Posts: 6,160 ✭✭✭Claw Hammer


    In order to obtain a Grant of Administration, it is necessary to show that efforts were made to locate a will. This will invariably involve placing an ad in the Law Society Gazette asking if anybody knows of the whereabouts of a will of so-and-so of such and such place. Some oils do in fact mirror the intestacy provisions quite closely, whereas others can be radically different. Intestacy does not allow for any charitable donations for example so if the deceased had wanted to make some, it wouldn't happen.


Advertisement