Dealing with an executry- a guide for legal consumers

Transcription

1 Dealing with an executry- a guide for legal consumers The death of a loved one can be a deeply painful experience. During this emotional time many people struggle to deal with the paperwork and legal formalities. We have prepared this guide to help you get the best service from your solicitor, and help avoid the common problems which may lead to complaints. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 1

2 Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 2

3 Top Tips Complaints about wills & executries make up 12% of all SLCC s complaints. These complaints are mostly about poor communication, delay and a failure to provide information. We suggest that there are four steps you can take to ensure you get the best service from your solicitor and that your expectations are met. These fall under the following headings: Roles and responsibilities Timescales Communication Costs In the rest of this guide, we will look at these points in more detail. There is also a glossary at the end of this guide to explain some of the legal terms your solicitor may use. This guide also provides information on: What to do when you have a complaint Who to speak to How to make your complaint Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 3

4 1. Roles and Responsibilities In executries, many complaints are caused by people not always being sure of what their roles and responsibilities are. If you are unsure of what your role is within an executry, ask the solicitor. They should advise you of your role and what to expect. An executry is the term used to describe the process of dealing with/winding up all the deceased s property (which is known as the estate). In an executry there is an executor(s). This is the person(s) responsible for gathering and distributing the estate in accordance with the deceased s will and the law. A beneficiary is a person who is likely to gain something or benefit from the estate. Knowing who the client is in an executry will make it easier to understand the roles of everyone involved, who the solicitor will mainly take instructions from and communicate with. Who is the client? In executries, the clients are the executors, not the beneficiaries. If a person does not have a will (dies intestate ), the court will appoint an executor, known as an Executor dative. The Executor dative is the client. In some cases a solicitor or a solicitor s trustee company can be appointed as the only executor ( sole executor ) and their firm may deal with estate. If you are an executor, your input will be required at different stages by the solicitor. Depending on the size and complexity of the estate, you may find the work quite complicated and time consuming. An executor can also be held responsible for any mistakes. You should keep this in mind when appointing executors. It is important that, if you are an executor, you are aware of your role and responsibilities and feel comfortable carrying out the role. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 4

5 In an executry where the solicitor is the sole executor, they do not have to follow the instructions of the beneficiaries, which happened in Mrs X s complaint:- Mrs X thought, as she was a named beneficiary in her late husband s will, that the firm had a duty to provide her with information which she requested about the winding up of the estate. The complaint was rejected as being totally without merit on the basis that the firm being complained about sought instructions from the named executor (the client) on whether they should provide Mrs X with the information she requested. In this case the executors instructed that this information was not to be disclosed to Mrs X. 2. Timescales Quite early on, your solicitor should provide you with a rough idea of how long things should take. It is understandable that most people want an estate wound up as soon as possible. Timescales can vary greatly depending on the size and complexity of the estate. There are no rules or guidelines to say how long it should take to wind up an estate. It is a good idea therefore, to understand the different stages involved. Ask your solicitor to provide you with an outline of the work to be carried out. If you feel that matters are dragging on, go back to the solicitor for an update. Be sure to ask the solicitor questions if you do not understand. If questions are asked, and your solicitor explains the process to you, it is likely that you will have a better understanding of what is involved and the factors which can delay matters. Factors which can affect timescales: Any property to be sold. Prior/Legal Rights claim (see glossary for definitions). Intestate estate (no will). Locating Beneficiaries. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 5

6 Inheritance Tax Valuations & Income Tax aspects. Claims by the Benefits Agency. Delays by third parties providing information, e.g. banks, insurance companies, HMRC. Obtaining Confirmation (see glossary) - the application for Confirmation must be made in the area where the deceased last lived. The speed in getting a certificate of Confirmation will depend on how busy the courts in that area are. Any joint and/or overseas assets. The six months rule Strictly speaking, this is not a rule, but a guideline used by nearly all solicitors. Generally speaking, an estate will not be completed within six months of the date of death. This is because there are likely to be outstanding claims for unpaid debts. All debts must be settled before an executor can distribute any of the estate to beneficiaries, otherwise the executor might be legally responsible for any unpaid debts. In short, don t have unrealistic expectations; some estates which can appear straightforward can prove more difficult and take more time to complete. Likewise, larger estates may prove less difficult than originally expected. Your solicitor should give you an idea of the timescales as matters go along. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 6

7 3. Communication Most complaints that we see about the winding up of an estate are to do with communication with the solicitor, or lack of communication. Things to bear in mind if you are an executor: Expect updates at key stages in the process. Your solicitor should have explained to you what these key stages are and when an update is likely to be provided. Executors should also be aware when their input is needed. Before contacting your solicitor, and bearing in mind that all communication is chargeable to the estate, it is worth considering whether the matter is significantly urgent or whether it can wait until your next regular or planned contact with your solicitor. If you do decide that you need to get in touch with your solicitor, may be a good way to contact them. This can make communications quicker. However, remember that your solicitor is likely to be dealing with other (sometimes many other) cases apart from your own. You should not therefore, expect an immediate response, even to an . This also applies to returning telephone calls. Things to remember if you are a beneficiary: If you are not an executor, the amount of information provided to you by the solicitor may be limited due to the rules around client confidentiality. Generally speaking, if a solicitor has previously communicated with the beneficiaries on a regular basis, they should continue to do so. If the solicitor has never communicated with the beneficiaries, then their duty to do so is minimal. If you are a beneficiary and are experiencing communication difficulties, ask the executor(s) for information or updates. If you are unable to do so, check with the solicitor if they have authority to communicate with you. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 7

8 If the solicitor asks you for information you should always try to provide this in good time to prevent delays. This applies equally to both executors and beneficiaries. In short, here are some useful tips to ensure good communication with the solicitor: Agree at the outset with your solicitor how you will communicate and how often. Don t be afraid to ask if you don t understand. Executors - agree how much communication the solicitor should have with beneficiaries and other third parties. Beneficiaries - check with the solicitor if they have instructions to communicate with you. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 8

9 4. Costs In most cases it will not be possible for a firm to provide in advance an exact estimate of the costs of winding up the estate. This is because it is difficult to assess how much time it will take to gather all the information about the estate which is required before it can be wound up. You should be aware that it is possible that the solicitor s fees and outlays will be deducted from the estate funds at the same time as the fee note is issued. For some, this method of billing can cause annoyance. By this stage however, you should already be aware of the firm s billing arrangements, either from reading the firm s terms of business and/or Letter of Engagement, or through discussions with the solicitor. There will be an executry account, which should list all the fees and outlays incurred during the administration. In many cases, a solicitor may choose to refer the accounts to a law accountant or an auditor for an independent assessment of the fee. If the executor(s) or beneficiaries dispute the fee charged by the solicitor, it can be referred to the Auditor of Court of the Court of Session or Sheriff Court for Taxation (see glossary). It is always best to clarify with the solicitor how the fees and any outlays will be charged. This will help avoid any unwelcome surprises when you receive the final bill, as happened to Mr Y: Mr Y (executor) was shocked to find that the firm had deducted all of their own fees and the Auditor of Court s fees from the estate funds without his permission. Mr Y complained about this to the SLCC. It was determined that whilst it would have been best practice had the firm advised Mr Y that they would be deducting their own fees from the estate, in terms of the Law Society of Scotland s rules, solicitors are entitled to deduct fees from a client account. In relation to the deduction of the Auditor s fees, it was determined that the firm were not entitled to deduct this from the client s account without notifying Mr Y and this was held to be a breach of the service standards. The complaint was partially upheld. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 9

10 In short: Ask for an indication of costs at the beginning and ask for updates if/when they go up. Costs can be unpredictable and it is best to ask for regular updates. Expect to be charged for time spent on s, telephone calls and meetings, even if you just pop in for an update. Details of charging rates and who is doing the work should be in the Terms of Business/Letter of Engagement. You should be advised of any changes to charging rates. Once the bill is issued, the solicitor cannot charge any additional fees for dealing with reasonable enquiries about the fees. You may find the way that items are described in the account unusual and there might be terms that you are not familiar with. If there is something in your bill which you do not understand, or are not sure about, ask. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 10

11 1. Complaints If you are unhappy with the service provided by a solicitor, or you feel that a solicitor s conduct is questionable, it is important that you make your concerns known as soon as possible. It is important that the relationship with your solicitor remains positive and that you feel you can trust them to deal with matters for you. In short: If you have concerns, speak to your solicitor first Allow your solicitor at least 28 days to deal with your concerns Be aware of time limits to make a formal complaint to the SLCC Ideally you should be able to speak or write your solicitor first of all. If you don t want to do that, you can ask to speak to or write to the firm s Client Relations Manager, whose job it is to listen to your problems/issues and try to resolve matters without the need for a formal complaint. Every firm must have a Client Relations Manager. In firms which have only one solicitor, this person will also carry out this role. You need to allow the solicitor/firm a reasonable opportunity to deal with your complaint. Once 28 days have passed, if you remain unhappy, you have the right to make a formal complaint to the SLCC. There are limits to the amount of time that you can take before you make a formal complaint to us. If your complaint is late, we may not be able to accept it for investigation. If you want to make a formal complaint to us, you must complete a complaint form within a set period of time. We would always advise you to make your complaint as soon as possible after you have complained directly to the firm. Details of the timescales for making complaints are on our website or can be provided by our Enquires Team. For any advice about making a complaint, we are here to help. Our contact details are below:- Scottish Legal Complaints Commission The Stamp Office Waterloo Place EDINBURGH EH1 3EG Tel Fax enquiries@scottishlegalcomplaints.org.uk Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 11

12 If you want to find out more about us and what we do, please visit We are open from 9am until 5pm, Monday to Friday, apart from Tuesday when we close for staff training between 10am and 11am. If you need information in another language or in large print or on audio CD, please get in touch. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 12

13 Glossary of Terms A Auditor of Court - A person responsible for examining legal accounts. The Auditors of the Court of Session and Sheriff Courts respectively examine and are said to tax accounts of expenses incurred by parties in civil actions in the respective courts. B Beneficiary - A person who benefits or will benefit from the terms of a deed such as a will or trust document. C Codicil - A supplement to a will which makes some alterations but leaves the rest of it intact. Commission - he term Commission means the Scottish Legal Complaints Commission (SLCC) Confirmation - The authority obtained from a sheriff authorising a person (an executor) to gather and distribute the estate of a deceased person. D Digital assets - Online shopping accounts with credit etc., or social media accounts. E Estate - All the property that a person owns, both heritable and moveable. Executry- The process of winding up the estate of a deceased person in accordance with a will or the law of intestate succession. Executor dative - A person appointed by the court to gather and distribute the estate or property of a deceased person. Executor nominate - The person named in the will of the deceased to gather and distribute the estate or property of a deceased person. Expede Confirmation - To lodge the necessary documents in Court and to obtain a Grant of Confirmation in favour of an Executor. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 13

14 F Fixed Fee - An agreed amount of fee that will be charged for the work carried out which does not depend on the amount time spent on the case. G Guardian - A person appointed by a parent or a Court to act as the legal representative of the child in the event of the parent's death, or a person appointed by a Court to act as guardian in relation to the property, financial affairs or personal welfare of an adult with incapacity. H Heritable Estate/Property - The term for property in the form of land and buildings. I Incapax - As applied to a person, signifies legal, mental, or physical incapacity. Inventory of deceased's Estate - A list of a deceased person's estate or property, heritable and moveable. Intestate - A person who dies without having left a valid will. J Jurisdiction - The power of a Court to entertain particular cases as determined by factors such as location or district or the value or type of the case. L Legal rights - The rights of spouses, children, civil partners, to certain property of a deceased person. Legitim - The legal share (one half or one third as the case may be) of a parent s net moveable estate due to or claimable by the children on death. M Moveable Estate - Personal assets, excluding heritable property. O Outlays - Costs incurred on your behalf which aren t solicitor s fees, e.g. registration fees etc. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 14

15 P Power of Attorney - A written document that gives someone else legal authority to make decisions on your behalf. Prior rights - Rights of the surviving spouse/civil partner of a person who has died without a will. T Taxation - The scrutiny of a solicitor s account by the Auditor of Court. W Will - A deed comprising the legal expression of a person s intentions as to the disposal of his property and the administration of his affairs after his death. Scottish Legal Complaints Commission Dealing with an executry- a guide for legal consumers 15