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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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Is the solicitor who handled my father's estate obliged to

Customer Question

Is the solicitor who handled my father's estate obliged to give me a copy of the work file of all work he did? We are both executors of the estate.
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

Will the other executor agree for the file to be released?

Customer: replied 2 months ago.
The solicitor is an executor. He has agreed to provide the copy of the file but nothing happens. As I am executor I want the file to review the work done. I would want this for review even if communication had been very good between us as part of my duties as an executor. His reluctance and lack of action concern me. Are you suggesting I have no right to review his work?
Expert:  F E Smith replied 2 months ago.

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?

Please rate the service positive. It’s the process by which experts get paid.

We can still exchange emails. Best wishes.


Customer: replied 2 months ago.
He is senior partner, possibly only active partner of the firm. He was not engaged by me but my father. I only had contact with him after my father's death so have no letter of engagement. The bad communication started immediately for which I have no explanation of.I have spoken to the SRA twice. The first time I spoke to someone helpful who gave the same advice as you did. The second time to another person who was distinctly unhelpful and referred me to the Law Society. Having read through the SRA website they only aim to achieve a negotiated compromise in disputes between solicitors and their clients. There can be no compromise in this case as I either get a full and complete copy of the file to independently confirm his work or I don't.I am not a client of this solicitor but a co-executor named in my father's Will. When I first informed him I would want a copy of the file he said I could view the file in his office but that it couldn't leave his office. I insisted I wanted a copy of my own specifically for a review for which he then quoted a commercial price per page with an unknown number of pages. I questioned this as I had been told he could only charge me a cost price which he disputed asserting it was the cost of running an office. Eventually a max price was agreed. I chased him several times, eventually with the assurance that copying was in progress by one of his staff and would be complete the next week. That was several months ago. I've heard nothing since.Before I have complained to him specifically and repeatedly seeking to establish a professional relationship and have said I would refer him to the SRA. He ignores everything. If he does reply it is generally uninformative or deflective. I always ask his office to confirm receipt of emails which they used to do as standard practice. This became necessary after he denied receiving my email first formally requesting a copy of the file. I chased him a month later and discovered this. He appears to have told his office staff to cease doing this and confirms emails himself after a few days. I've asked him if this is the case and as usual he doesn't give an answer. This is all per email.I can no longer believe that I can make progress with him. Sadly, I must accept it's possible he has something to hide so it is necessary for me to have the file properly reviewed to confirm he did his work correctly as per my responsibility as an Executor.What information can you provide to allow me to meaningfully make progress in obtaining a full and complete copy of the file?E.g. Is it possible to get a Court order to instruct him to provide the file? I am prepared to make this case before a magistrate and for the solicitor to give his reasons to the magistrate. I am very wary of getting caught up paying lawyers to write letters to each other about what one of them should be doing. The solicitor has already been paid a significant sum for handling the estate. Can I challenge his ( self-assessed) fee in Court as he has not done the required work and use the occasion for him to be instructed to provide the file?
Expert:  F E Smith replied 2 months ago.

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.


Customer: replied 2 months ago.
There are two other executors. Does that change anything? Like myself they are beneficiaries of the estate.l
Customer: replied 2 months ago.
There are two other executors. Does that change anything? Like myself they are beneficiaries of the estate.
Expert:  F E Smith replied 2 months ago.

The other executors would have to agree to have the file released by the solicitor.

Customer: replied 2 months ago.
What if they refused? I haven't spoken to them about this yet.
Expert:  F E Smith replied 2 months ago.

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.

Customer: replied 2 months ago.
I would be shocked if the other executors did refuse. Would they need to explain why they'd were willing to impede the resolution of the concerns of another executor?
AFAIK they would have no reason to refuse as they have no further interest in the estate, but we are not close and I've noticed inheritance issues after a death can change people's behaviour.
I prefer to assume the simplest scenario: the other executors had/have no interest in the process itself and just waited for the final result and have since put the matter behind them. The solictor is accustomed to a usually compliant clientelle accepting his decisions and never asking him to explain his actions and he wishes to avoid exposure of mistakes,incompetencies, 'optimisations' or short cuts that he allowed to slip in. I can only guess. He does not consider it necessary to keep other executors informed and probably finds most people don't care anyway and those that do are an irritation.
This conflicts with my own professional background where transparency is assumed and knowledge driving decisions is willingly shared - as it should have been between executors. The winding up of my parents' estate built up over 2 professional lifetimes in a non-trivial event that I wanted to understand out of personal involvement and intellectual curiosity.
Strangely I think a simple monthly update CC'd to the 3 of us listing what progress had been made and the progress expected for the next month would very likely have satisfied my expectations of how the matter would be handled. But hearing nothing for several months alarmed me ( as I had learnt from websites that I had obligations as an executor), as did unexpected open aggression from the stranger charged with handling things. He spent far more time just reading my emails and writing obtuse unhelpful replies than such an update would have taken. Instead he apparently preferred to respond to us individually if we contacted him.
I expected from this solicitor only that he do his task professionally and in my view he was lacking in communication. To confirm whether the legal nitty gritty was done adequately I need a review of what was done in the estate's name. That seems a perfectly reasonable requirement with or without friction, and consistent with the role of executor which I understand to be ensuring that the instructions in the Will be followed as closely as possible.
In what circumstances would a Court refuse such a request for the file, even if it were resisted by the other executors? What valid reasons could they have to refuse?
If the situation was reversed my only concern would be that the future integrity of the file itself as a record could not be questioned.
Could a Court order that the file to be transferred to the safe keeping of another, independent, solicitor to make a copy for me to review?
As the estate has been wound up and the legal work is complete there is no further need for the original solicitor to remain an executor. My father added him as an executor only after it was suggested by the solicitor himself as easing the process. In principle I accept the sense of this, just regret that it was this solicitor given how things have turned out.
Could the Court also order that there was no further need for the solicitor to remain an executor?
Could a Court order that the fee he took for winding up the estate be reduced should his work be determined by his peers to have been inadequate? I'm thinking that the prospect of this may encourage co-operation to speed completion of the review.
Expert:  F E Smith replied 2 months ago.

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.

Customer: replied 2 months ago.
34;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."If all the executors are in agreement the Court wouldn't be involved. Have I misunderstood something?"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 solicitor has told me the file can't leave his office but I can study it there. Not very practical but he hasn't refused access just possession. He's agreed to make a copy on a commercial basis though this hasn't yet happened. He gave no justification or mentioned anything about the other executors needing to agree.If I asked for the file itself not a copy based on what you've told me and he refused as a co-executor and I then asked a Court to instruct him to release the file are there any circumstances in which the Court would refuse? Are you aware of any such case?If either or both or the other executors also refused are there circumstances in which the Court would refuse? I would make the case I've related to you backed by emails. If I can't get the file it seems to invalidate the role of an Executor in an arbitrary manner as the file is necessarily with the executor who did the actual work which in this case is a solicitor but could be any executor willing to do the task, whether alone or working with other executors." interest of the beneficiaries..."
Could this be something that I wasn't aware of regarding the other beneficiarires? Shouldn't all executors be aware of everything pertaining to the estate?
Finding out what was done in name of the estate is why I want the file as I have no idea despite my best efforts what I was told was often inconsistent when not vague. I suspect on occasion my understanding was "managed" to shut me up rather than to be a correct reflection of what was happening. The whole experience is odd as probate is not in principle difficult even if details can be. Why the perceived effort in obfuscation when openness would be easier?Are you advising the following?That I should ask the other executors to confirm to the solicitor he should release the file and if he still refuses I can ask a Court to so instruct him.
If either or both of the other executors also refuse, I can still ask a Court to instruct the solicitor to release the file.
In each case the Court shall listen to the reasons of each party ( in open court so I can know what they might be) and then order where the file should be. Whether released to me or go elsewhere or stay where it is.Are you aware of any cases where one executor has wanted the file against the objections of co-executors?I find the concept odd as without the info how can a co-executor undertake an oversight role? Are all executors not jointly responsible for handling of the estate?
Worse case if I had to ask a Court for the file against the objections of the 3 other co-executors could they impede the process by refusing to attend Court or asking for a change of date or venue at short notice? What would Court fees be? Would the Court need to read the whole file to have an opinion of it?Obviously it would be a very bad sign if the solicitor insisted on me taking this to Court and then being repeatedly unavailable to just to make it difficult ( and multiply so if the other executors went along with that) and an indicator that something was amiss. Which Court would be used? Would they tolerate a refusal to go to Court? All executors are in different places. 1 in a town nearby to the solicitor, 1 some hours away and I'm all over the place, often out of UK.Necessarily I've had to to consider some worse case scenarios here.Is there not another mechanism for an executor to review the work done in the name of my father's estate, as per my obligation?
The file will continue to be available to the other executors and the progress and results of the review available to them.
Why should this be difficult?
Expert:  F E Smith replied 2 months ago.

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.

Customer: replied 2 months ago.
34;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."
Again I don't understand your point here. If the executors all agree no one going to go to the trouble of going to Court.You gave quite a detailed answer clearly with the impression that the estate is not finalised. I don't know why you have assumed that.
I was told by the solicitor that the estate was finalised before xmas 2014, with just a house needing to be sold.
With the sale of the house in Feb 2015 and all outgoings having been made the net remaining came to me.
I would not have received the funds unless everything else had been completed. This was made clear to me, and that does make sense.Having by that time already told the solicitor I would be wanting to review the work he had done, I waited SIX months to allow him to finalise the paperwork should he need to and put the file in the cellar or whatever happens to closed files.In Sep 2015 I emailed him with a formal request for a copy of my father's file. As I said before a month passed without reply so I chased him and he denied receiving the email.
He then attempted to dissuade me from having a copy by various means and after 3 or 4 missed deadlines for implausible or no stated reason before xmas in Jan 2016 he confirmed it was in progress and would be complete shortly as I've said. That was in January 2016 I think and I have heard nothing since.My approaches to SRA and Law Society have not been encouraging and I can only cynically regard the law as a self serving industry.
The solicitor is clearly as indifferent to my frustrations at my inability to fulfil my legally appointed role as he is of my rights as an executor and clearly risks no embarrassment from exposure of his behaviour even if it became known to his peers. What other profession would tolerate this? Lawyers sue medics and engineers for the slightest thing who are overwhelmingly deeply self-analysing and self correcting and arguing about best practice and templates or patterns of work. Lawyers do what they want and other lawyers don't care unless someone is going to pay them an hourly rate to do so.The legal profession behaves like a high priesthood that is contemptuous of the lumpen fools who are not party to the secret spells that rule them.You have advised that my only redress is to take him to Court, I assume that court will need to be in his home town where he is a known local lawyer often working in the very same Court, protecting the rights of the local criminal fraternity. One of his casual ways of avoiding giving me an answer when I would telephone him was to suddenly say that he had to go to court and he would just hang up.My options seem to be to hire another solicitor to exchange letters with him. He would understand that I would be charged for every letter he received and wrote so would encourage such letters just to impose costs on me. 'My' solicitor must presumably be available to attend court so would need to be in the same town, perhaps even a former colleague. Not that I could expect to be told that.This would be an additional ( the estate has already paid the 1st solicitor) cost with him able to set and reset the agenda at will at maximum inconvenience to me and immune from any embarrassment or questioning of his behaviour. And the local legal industry including court officials sympathetic to him milking the situation.I can't complain to a consumer ombudsman because the SRA and LS are part of the whole scam which are there to give the pretence that a responsible adult ensures it works in the interests of society.
Nothing will happen unless I can convince a court to act against one of their own.It's like a professional tennis player being legally obliged to do something but refusing, so I'm unable to do what I am legally obliged to do.
So I'm left to challenge him to a tennis match at his club, umpired by his close colleague, using the club's balls and rackets when I barely even know the rules of the game.
Perhaps while being advised by someone who was a school friend of his. It will cost me £1000s to play and if I don't win he needs to do nothing and may even charge me for his expenses.However, I remain accountable for my legal obligation - which in my case is shared responsibility for work he has done which I am able to review or even know of.
This is how law works in the UK. It is farcical.As you can see, retelling this has caused my frustration to return. But your answers have been helpful. I think I have one further question. With the passing of time, will official documentation of the probate and winding up of the estate disappear? Is it kept for only a limited period of time like tax records? If I am undecided about what to do but take action later will all the documents he filed still be available?
Expert:  F E Smith replied 2 months ago.

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.

Customer: replied 2 months ago.
34;The probate records were remain indefinitely. However the solicitor may dispose of the file after 6 years."Is that after Date of Death or completion of the winding up of the estate? Is there a formal date for the completion?I do not recall signing off his work as an executor. What would that document be called? Could I find a template on the internet to see if I recognise it?
I did sign documents when he asked me to, often after only cursory ( false?) explanation from him. They were usually unread and certainly not understood which made me uneasy, and signed in his office having been summoned without explanation. I tried asking him to email me the doc first, and also copies of all doc I'd signed, with limited success and never for anything that looked like a blessing of all his works. The alternative was to refuse, demand explanation. At best this caused delay but generally chilled the atmosphere. Ultimately I had no influence and felt I had no choice but to assume he was a competent professional even if unpleasant and I would have to wait to review matters when all was done.
After the sale of the house I made reference during a phone call/email to signing off and he didn't say that I'd already done so.I am rambling, reliving a bad 2 year experience.
Thanks for your responses.
I thought I'd signed up to ask a question but got an email confirming I was on a week trial.
Which is it? Can I ask more questions about other topics if I can think of any?
Expert:  F E Smith replied 2 months ago.

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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F E Smith, Advocate
Category: Law
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Experience: I have been practising for 30 years.
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Customer: replied 2 months ago.
Expert:  F E Smith replied 2 months ago.

Thank you for accepting my answer. I am glad to have helped.

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