New Law Journal, Charities Appeal Supplement 2010
Daniel Curran explains how to manage the cost of tracking down lost relatives
Probate genealogists are experts in finding solutions to complex issues surrounding wills and succession, and specialise in identifying and tracing heirs, locating people who may be beneficiaries under a will or on intestacy. They are frequently instructed by solicitors, executors, or administrators and trustees, or may act directly for the beneficiaries.
When a missing heir needs to be found or unknown next of kin need to be traced on intestacy, the probate practitioner will, of course, need to be sure that the genealogist's proposed solution is fair and ethical, as well as cost effective.
In our view it is best practice for the practitioner to look at a variety of fee options and to select the arrangement which is most appropriate for the circumstances. The administrator, or the solicitor acting for the administrator, has a duty to all heirs, albeit missing or unknown, right from the outset. Therefore, the choices made at the moment a case arrives on a solicitor's desk on how to go about tracing the unknown kin may have significant repercussions later on. Additionally, our experience suggests that it is clearly best practice advice not to incur any fees or expenses, or commit to any fees and expenses of a third party, until you are legally entitled to do so.
Deferring a fee
One solution offered is for the genealogist to propose to defer an agreed fee until they can find an heir entitled to take out a grant of representation. They then forward the details of that person to the solicitor who extracts a grant and pays the genealogists their fee. Additional fees may then be sought by the genealogist to complete the work they have started. It is possible that the "deferred" fee(s) can ultimately run into tens of thousands of pounds.
Agreeing to the deferred genealogy fee, to be paid by an estate in exchange for the production of a member of the deceased's entitled relatives, can lead to problems however. The heir(s) will not have had a chance to agree the fee, but will become aware of the deferred fee at a later stage. The genealogist's fee(s) will then be deducted from the estate, directly affecting the amount the heir(s) receive, again without their prior knowledge or consent. This is the primary reason why best practice is to liaise with a genealogist who will provide free advice and offer a full range of fee options wherever legally possible.
Where there is no grant and no funds available, genealogists may recommend working on a commission fee basis, entirely at their own risk and expense. This means that the solicitor needs only to wait for results of their work, after which they would seek instructions from one of the next of kin in the usual way. The solicitor will also have the chance to approve the commission fee in advance, or to set a limit.
With the commission fee approach there is no advance agreement on fees to be paid by the estate and no pause in research while the first beneficiary entitled to take out a grant is referred back to the original solicitors for them to extract a grant. The commission fee option is usually possible where a share due to an heir is as little as £2,000 or an estate is valued at £8,000 or over.
Commission fee arrangements may not always be the most appropriate, or the most cost- effective, method of charging in every circumstance. However, they provide clients with a wider choice of fee option, and can carry less risk than some other options for the estate for beneficiaries and for the probate practitioner. If contingency fee arrangements were not available, there would be cases where a search for a missing heir is simply not undertaken, and others where the estate of known heirs is used up in fees paid for searching for missing heirs, regardless of whether or not they are actually found!
Any solicitor or administrator working with a professional probate genealogists should have a choice of fee options that are most appropriate to the problem in question or the legal status of the estate. It is important to bear in mind that there is no "one size fits all" solution, and fairness, flexibility and professionalism all have a part to play.
Daniel Curran is managing director, Finders.