Will the other executor agree for the file to be released?
I’m not suggesting that you have no right to the file at all. Quite the opposite in this case.
I didn’t know that the other executor was the solicitor. If the other executor was not a solicitor, then you would both have to agree to release the file.
You are entitled to the original file. If the solicitor wants to keep a copy, than the solicitor must pay for his own copy. He is entitled to charge you for posting it.
Make a formal complaint in writing telling him that unless he makes the file available for collection (if it’s practical for you because then, he cannot blame postal delays) by midday Friday, you will make a formal complaint to the firms complaints partner (the details will be in the terms of business/client care letter sent to you at outset) and if that does not produce the file,you will then refer the matter to the Solicitors Regulation Authority and the Legal Ombudsman.
If the file isn’t available on Friday lunchtime, make the formal complaint immediately.
Can I clarify anything for you?
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As the other executive, he should have sent you a letter of engagement detailing his fees.
You need to write to the SRA because it’s better for there to be hardcopy.
They will try to negotiate a settlement the last thing anybody wants is the SRA on their back because they actually do ultimately have the power to close a firm down.
You are a client. You are your father’s personal representative and as such, you are entitled to anything from the solicitor as though you are your father.
If he is currently working on the file, would make sense to have a copy rather than the original.
As I said earlier, if he wants to keep a copy, that is up to him.
If you find that the Solicitors Regulation Authority are less than helpful, pay the solicitors copying fee and then sue him in the Small Claims Court to get the money back on the basis that you paid under duress as you had no alternative.
You could if you wished go to court to get an order for pre-action disclosure if you suspect that the solicitor has not done something which he should have done. It would be quicker and cheaper to pay the solicitor’s bill, get the file, and then sue him in the Small Claims Court for the cost.
The other executors would have to agree to have the file released by the solicitor.
If they refused, you are faced with making an application to court for an order to compel the solicitors to release the file on your instructions only.
If all the executors were agreed that the file should be released, it is unlikely that the court order otherwise. The file belongs to the estate not to the solicitor.
The court would refuse the request if they didn’t think it was in the best interest of the beneficiaries to release it and I can’t think why that would be the case.
The point you make about transparency is well made.
The court would not order the removal of the solicitor of its own volition, it would require an application either by the beneficiaries or the other executors and it will only do so in extremely serious circumstances when the beneficiaries positions have been prejudiced or that is proof that the executor has done something that he shouldn’t have done or has not done something that he should have done.
The solicitor of course suggested adding himself as an executor so that he would get paid for doing the executor ship!
The court would not order the fees to be reduced of its own volition, it would only do so if it believed the work was not of satisfactory quality under the Consumer Rights Act and an application was made to reduce the fee.
What I said was that if the executors agreed that the file should be released, the court is unlikely to order otherwise. What I mean is there are likely to order not to be released.
It’s not unreasonable for the solicitor to hang onto the file original until such time as the estate has been finalised but that purely from a practical point of view. He has no more right to hang onto the file than anyone else does. The file belongs to the estate.
I have already mentioned about paying for the file copy (which you are not obliged to do) and then making a complaint about the solicitor asking for that for actually suing him in the Small Claims Court to get the money back on the basis that you paid under duress.
I just can’t see why court would allow him to hang onto the file and not release it although, as I said earlier, what he doesn’t want is the file to be messed up before the estate is finalised which would explain his reluctance if he is happy to let you inspect it in his office.
All the executors should be kept fully informed. In effect, they should be working with the solicitor whereas in this case it appears the solicitor is doing his own thing.
I wouldn’t suggest that you made any court application until the estate had been finalised. It is likely to slow the administration and that is not in the best interest of the beneficiaries. There is no reason why, when the estate is finalised, the solicitor should then not release the original file and if he does not, then you make the application to court.
If you made the court application now, it is likely that in view of the fact that the solicitor has said you can see the file and the estate is not finalised, that they would say your court action was premature. The other matter of course is that until the estate is finalised, if you have the file, work will stop. that is not in the best interest of the beneficiaries. It would be different if the estate was finalised.
When I was referring to all the executors, I was not including the solicitor because the solicitor, you have already said, will not agree.
You have not mentioned before that the estate was finalised in 2014. If that’s the case, then the solicitor has no need to hang onto the file. However it was obviously not finalised until sometime after February 2015 with the sale and distribution of the house proceeds.
Contrary to your opinion, solicitors actually love suing each other. And I can also tell you that the Solicitors Regulation Authority routinely comes down like a ton of bricks on solicitors.
The probate records were remain indefinitely. However the solicitor may dispose of the file after 6 years.
I can’t think why the solicitor would defend an action to release the file if he is willing for you to inspect it at his premises. If he raises that issue in court, that is easy to counter by saying thatyou want it inspected at length by a third party and that is not practical in the solicitors office.
The six years is the recommended minimum period suggested by the Law Society. It is from when the file is closed and the solicitors ledger has a nil balance.
There is no standard format for signing off his work, would just be presented with a state accounts for approval.
He should explain the accounts to you and allow you to ask any queries rather than simply thrust them in front of you telling you to sign.
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