‘Explain respective roles of executor and solicitor’
The LSRA’s latest report includes an examination of complaints relating to wills and probate.
Such complaints account for 7% of all complaints received by the LSRA to date (671 out of 9,616).
The report identifies several recurring issues in these complaints, including delays in progressing matters, poor communication with clients, and failures to manage client expectations.
While these issues can arise across different areas of legal services, LSRA chief executive Niamh Muldoon said that their impact could be more acutely felt in the context of wills and probate, where people may be dealing with difficult personal circumstances.
Case studies
The report also includes anonymised case studies that illustrate how these issues arise in practice and highlight the lessons that can be learned for both legal practitioners and the public.
Among the key messages the report sets out for solicitors is that the respective roles of the executor and solicitor should be clearly explained at the outset.
Clients should also be advised that the solicitor corresponding individually with beneficiaries may significantly increase costs.
“Regular and timely communication should be maintained through the administration, particularly where issues arise that may cause delay,” the report states.
‘Storage fee’ warning
One case study in the report concerns a solicitor who was given a warning after charging a ‘storage fee’ to an executor who wanted the will so that she could instruct a different solicitor to handle the estate’s administration.
The solicitor claimed that the fee was justified as the original charge for making the will was discounted in the expectation that the same firm would deal with the administration.
A complaint against the solicitor was upheld and the fee refunded.
Delay
The report points out that clients are not obliged to instruct the law firm that drafted a will to deal with the administration of an estate.
The LSRA report adds that the legal fees for drafting a will are no different to any other legal costs and should be discussed and agreed with the client.
Another case study involved a failure by a solicitor to hand over a client’s file promptly after a dissatisfied complainant engaged new legal representatives to administer an estate.
The report warns practitioners that they have no entitlement to exercise a lien on an original will and should hand it over once requested, without any unreasonable delay.
Penalty
The LSRA states that any failure could result in a penalty, even where the file is ultimately handed over.
“In circumstances where there is a difference of opinion on how best to handle a particular matter, it is important to discuss this with your client and agree a way forward,” the LSRA advises.
Failure to follow a client’s instructions can cause unnecessary delays and may undermine the client’s confidence, it adds.
Clear instructions
The public must also be clear and concise in their instructions to a solicitor, the LSRA says.
A client should always receive a costs notice, setting out charges in clear language, or the basis on which the legal costs will be calculated, even if actual costs are not yet known.
The LSRA also urges solicitors to engage fully with it on any complaint matters, to avoid unnecessarily prolonging the investigation process.