Jo Summers, solicitor, explains the importance of seeking a probate solicitor with specialist knowledge and suitable experience, and the fee options available.  

When a loved one dies, dealing with the legal aspects involved can be hard. Numerous questions arise, such as whether there is a valid will, do the intestacy rules apply, or who has power to deal with the deceased's assets.

Another important question is whether to use a solicitor to obtain probate (or letters of administration, if it's an intestate estate) and if so, what are the main points you need to take into consideration when choosing a probate solicitor?

Here are some of the key points to consider when choosing a probate solicitor.

Probate solicitor fees explained

Usually, the first question for anyone looking for a probate solicitor is how much it will cost.

Many people are surprised by the number of different ways a solicitor can charge for probate services. Some solicitors charge fixed fees, others charge on an hourly basis for time spent, and others charge an ad valorem fee, based on the value of the estate.

• Fixed fees: a solicitor will assess your situation and provide you with a fixed fee, having discussed the amount of work involved. This gives you a level of cost certainty.
• Hourly charge: a solicitor will assess your case and provide a fully flexible option on an hour-by-hour basis. You will be given information about the likely overall cost and will be updated as to these costs as you go along. The advantages of this charging structure are that you will only be charged for the time spent, so if it is a simple process, this could be a cheaper option.
• Ad valorem fees: this should be no more than 0.75% of the value of the residence and 1.5% for the gross value of the estate less the residence (decreasing for larger estates). This fee structure is no longer common practice, however Law Society guidance confirms that ad valorem billing is permitted, provided the basis for charging is clear and is agreed in advance.

Regardless of the charging model, fees should be agreed in advance with the executors nominated in the will, or the personal representatives, should an intestacy arise. It may also be sensible to seek approval from any beneficiary who is absolutely entitled in the will. Particularly where the residue is going to charity, solicitors may find their probate fees being scrutinised by the beneficiary to check the overall cost is fair and reasonable.

'Unbundled' services for simpler estates

While many people prefer to pass the whole probate process to their solicitor and leave them to it, some may wish to be more actively involved, particularly in the administration of the estate once probate has been obtained. This kind of involvement is more common with a smaller estate, whereas a more complex estate will probably need to be dealt with by a professional.

If you do want to undertake some aspects of the process yourself, you will need to check whether your potential solicitor can 'unbundle' their services. They will essentially need to give you a list of items, so you can choose which to deal with yourself and which to ask the solicitor to do. In this situation, clear communication is vital to ensure that each party knows exactly what is expected of them, and to prevent any omissions or duplication.

Familial ties with solicitors

Many people have close ties to a family solicitor who they have dealt with previously and who they feel they can trust. This may even be the family solicitor who drew up the will in the first instance, and therefore they will have extensive knowledge of the wishes and instructions of the testator.

In these circumstances it is always prudent to obtain a quote for the administration of the estate before you officially instruct them. You can also shop around by obtaining quotes from other solicitors just by providing a rough idea of the value and the type of assets in the estate.

Professional qualifications

The final consideration when choosing a probate solicitor is whether they have any specialist professional qualifications in this area. The Law Society has a Wills and Inheritance Quality Scheme (WIQS) to denote a specialism in this area, and membership of STEP (full members use the letters TEP after their name) will also reassure you that you are dealing with a suitably qualified professional.

Specialist knowledge and suitable experience is important, as probate work can be a minefield, ready to trap the unwary. Mistakes can result in huge expense and distress, which may take years to resolve.  

If the estate includes any international element, such as assets outside the UK, for example, the need for experience becomes even greater. Your UK solicitor should be able to recommend a practitioner in another jurisdiction should the need arise, for example, to have the grant of probate re-sealed in another country.

Solicitors as executors

It is not uncommon for solicitors to act as executors. They may be named in the will because the testator does not wish to appoint family members or friends, or so that it takes the burden away from family members. They may also have to step in as executors where the named executors are unable to act, for example, if they no longer live in the country, or have died.

If this is the case, you should confirm whether the solicitor will be charging for acting in their additional capacity as executor, or whether they will only charge for the actual legal work involved.

About the author

Jo Summers is a solicitor and member of the Law Society's Wills & Equity Committee and STEP's UK Practice Committee.