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.
In our view 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.
One solution offered which has attracted considerable criticism 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.
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. 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 knowledge or consent.
This is the primary reason why best practice is to liaise with a genealogist, such as Finders, who will offer a full range of fee options wherever legally possible. In the situation described above, where there are no known next of kin, Finders can undertake the research to find next of kin entirely at their own risk and expense, a solution that is approved independently by a leading QC.
When solicitor encounters a case where no next of kin are known, or otherwise needs to minimise risk and expense and avoid any of the possible repercussions of the ‘deferred’ fee described, Finders can help.
Finders initially provide a free, no-obligation assessment and, where there is no Grant and no funds available, 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 found by Finders, in the usual way. The solicitor will also have the chance to approve the commission fee in advance. If you tell Finders that they may seek a fee of no more than 20% of the heirs’ net entitlement from the Estate, that’s exactly what will happen. However, if Finders fail to find any next of kin or prove that the whole family has died out, they will still submit a full report, but this is free of charge. If there are next of kin who are unwilling to sign commission agreements for their own personal reasons, Finders will still send their details on in their report; they will never put any pressure on anyone to sign anything they don’t want to.
With the commission fee approach there is no advance agreement on fees to be paid by the estate and no pause in research whilst the first beneficiary entitled to take out a grant is referred back to the original solicitors for them to extract a grant (and of course pay the genealogists deferred fee!). The commission fee approach 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. It is possible for the ‘deferred fee’ to be tens of thousands of pounds.
With no commitment to completing the work without further fees and the probability that this option is not a legally viable option the ‘deferred fee’ has been dismissed by the vast majority of the reputable probate genealogy firms, preferring instead, like Finders, to consult and assess each situation on it’s merits and offer the widest range of fees possible in order to satisfy best practice.