# Who has the authority to pay out - The Executor or the Solicitor?



## Rosa Klebb

This is a long story, but I'll focus on the question at hand.  The death was 18 months ago.  Probate was granted 6 months ago.  The estate is entirely in cash.  All of the beneficiaries sent back their signed indemnity letters 2 months ago, except for one.  My father is the executor, and he wants the solicitor to pay out the beneficiaries, apart from the person who has not yet returned the indemnity.  The solicitor is refusing to pay anyone until all have signed.

Does the solicitor have to power to disregard the executor's explicit instructions like that?


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## mathepac

I have to admit that this is a new wrinkle to me.

Who or what purpose does the letter of indemnity serve? If, for example,  it states that the beneficiary won't sue the solicitor in the event of things going wrong subsequent to the disbursement of funds, then IMHO it's unnecessary, unless of course the executor has already ignored professional advice offered.

The solicitor's client is the executor and the solicitor takes instruction from the client, unless of course an illegal or unethical course of action is suggested.

(Not a lawyer)


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## Rosa Klebb

No. The letter of indemnity doesn't mention the solicitor (oddly).  It says the beneficiary agrees not to sue the Executor.

In the case of the one beneficiary who hasn't signed the letter, the Executor doesn't care and would risk any unlikely litigation from the non-signing beneficiary, but the Solicitor won't approve any payments to anyone.


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## Padraigb

So the solicitor is imposing a condition on distribution that the executor does not require. That is unacceptable.


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## Vanilla

Padraigb said:


> So the solicitor is imposing a condition on distribution that the executor does not require. That is unacceptable.


 
Unfortunately in this world of 'i will do what i like and even if i'm wrong i can always sue someone, hopefully my solicitor' solicitors are wise to be cautious.

It may well have formed part of the initial letter/contract of engagement with the solicitor which forms the basis on which the solicitor will act. Law Society states that these indemnities should always be obtained. There are guidance committees that the solicitor could obtain a steer from if they are unsure about their exposure where one beneficiary will not sign. I've certainly come across it before and it is a difficult issue.


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## Rosa Klebb

The Executor (my father) isn't insisting that the non-signing beneficiary be paid.  Just the ones who have signed.  The non-signer lives overseas, and is objecting to having to pay Irish Inheritance Tax on his bequest.  So his gripe is not with the estate or the will, it is with the Revenue Commissioners.

My father is close to a nervous breakdown over this, as it has gone on so long and he is now being harassed by the other beneficiaries to be paid.


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## Rosa Klebb

I should add this is a decent sized estate (over 2 million euro), and there are about 28 beneficiaries.  27 of them have signed the Indemnity letter.


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## Padraigb

Vanilla said:


> Unfortunately in this world of 'i will do what i like and even if i'm wrong i can always sue someone, hopefully my solicitor' solicitors are wise to be cautious.
> 
> It may well have formed part of the initial letter/contract of engagement with the solicitor which forms the basis on which the solicitor will act. Law Society states that these indemnities should always be obtained. There are guidance committees that the solicitor could obtain a steer from if they are unsure about their exposure where one beneficiary will not sign. I've certainly come across it before and it is a difficult issue.


I have no problem in disagreeing with august bodies such as the Law Society. To my mind, the best protection against litigation that a solicitor has is to do the job properly, and if the job has not been done properly then a person who has been adversely affected by that should have recourse to the courts.

It is oppressive to require a person to renounce legal rights he or she might have as a condition of giving them that to which they have an absolute legal entitlement.

How would it play out if one of the beneficiaries initiated action under S.62 of the Succession Act? [OP, look at that section; you can find it here: http://www.irishstatutebook.ie/1965/en/act/pub/0027/print.html.]


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## Rosa Klebb

Padraigb said:


> I have no problem in disagreeing with august bodies such as the Law Society. To my mind, the best protection against litigation that a solicitor has is to do the job properly, and if the job has not been done properly then a person who has been adversely affected by that should have recourse to the courts.
> 
> It is oppressive to require a person to renounce legal rights he or she might have as a condition of giving them that to which they have an absolute legal entitlement.
> 
> How would it play out if one of the beneficiaries initiated action under S.62 of the Succession Act? [OP, look at that section; you can find it here:



Yes, I've read that section before.  Since we're well past a year on this estate, that's partly why my father is so frantic to get it sorted.  

I should add that the solicitor is being very uncooperative and unresponsive to calls from my father.  But it would be difficult to start with a new solicitor, as there isn't money to pay one.  All of the bequests have been calculated and signed (bar one).  So there would be no money to pay additional legal expenses, without re-doing the estate accounts and starting the bequest letters all over again.




> 62.—(1) The personal representatives of a deceased person shall distribute his estate as soon after his death as is reasonably practicable having regard to the nature of the estate, the manner in which it is required to be distributed and all other relevant circumstances, but proceedings against the personal representatives in respect of their failure to distribute shall not, without leave of the court, be brought before the expiration of one year from the date of the death of the deceased.


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## Deiseblue

I know that your father would prefer to have the solicitor discharge the residuary entitlements but to shortcut matters would it not be an idea for your father as Executor to instruct the solicitor in question to lodge the funds in an account designated in your father's name as the Executor of X's Estate .

Your father could then pay the beneficiaries , I would however lodge the monies due to the single dissenting beneficiary to a deposit account pending a solution to the failure to complete the indemnity.


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## Padraigb

Rosa Klebb said:


> Yes, I've read that section before.  Since we're well past a year on this estate, that's partly why my father is so frantic to get it sorted.
> 
> I should add that the solicitor is being very uncooperative and unresponsive to calls from my father.  But it would be difficult to start with a new solicitor, as there isn't money to pay one.  All of the bequests have been calculated and signed (bar one).  So there would be no money to pay additional legal expenses, without re-doing the estate accounts and starting the bequest letters all over again.


Staged escalation is often a good strategy. Avoid bringing in extra lawyers unless you have to.

Why not invite one (or more) of the beneficiaries to write formally to your father, who is the executor, asking for payment of his or her legacy, citing S.62? Your father can then pass copies of the letter to the solicitor, with a written instruction to make the payment(s).


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## Rosa Klebb

Padraigb said:


> Staged escalation is often a good strategy. Avoid bringing in extra lawyers unless you have to.
> 
> Why not invite one (or more) of the beneficiaries to write formally to your father, who is the executor, asking for payment of his or her legacy, citing S.62? Your father can then pass copies of the letter to the solicitor, with a written instruction to make the payment(s).



I think my father would worry about giving the beneficiaries ideas!  Would it work if I wrote the letter to him? (I am a beneficiary).

As I see it, my father's greatest risk is this:  His brother (the deceased) lived most of his life in the UK and Australia.  Most of the beneficiaries live in the UK and Australia.  So if the Euro blows up again like it did last summer, they may end up with much less in Sterling or AU$ than they are expecting.  And then sue my Dad for their loss.

For anyone reading, never ever agree to be executor of an estate, unless it's your parent.  And even then think twice.


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## Padraigb

Is the estate in Ireland? That is probably determined by where your uncle was resident in Ireland at the time of his death.

I infer that the beneficiaries already have ideas! But yes, the simplest measure would be for you to write the letter. If that frees up the logjam, then the other distributions should follow - unless the solicitor is particularly obdurate, which seems possible. He may need to get a bundle of letters written.

Regarding the final paragraph: I have to disagree. Every will needs an executor (but not every executor needs to employ a solicitor). I have taken on the role of executor and have not had problems with the beneficiaries. But that is partly good fortune, and partly because I am comfortable with the sort of procedures that are involved - legal and financial stuff, and keeping people onside with me.


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## Rosa Klebb

Padraigb said:


> Is the estate in Ireland? That is probably determined by where your uncle was resident in Ireland at the time of his death.
> 
> I infer that the beneficiaries already have ideas! But yes, the simplest measure would be for you to write the letter. If that frees up the logjam, then the other distributions should follow - unless the solicitor is particularly obdurate, which seems possible. He may need to get a bundle of letters written.
> 
> Regarding the final paragraph: I have to disagree. Every will needs an executor (but not every executor needs to employ a solicitor). I have taken on the role of executor and have not had problems with the beneficiaries. But that is partly good fortune, and partly because I am comfortable with the sort of procedures that are involved - legal and financial stuff, and keeping people onside with me.



Yes the estate is in Ireland.  My uncle (the deceased) sold all of his assets overseas and moved in with my father (the executor) who acted as his carer in his final years.

My point about acting as executor is that it is all effort and liability and no reward.  My father will get the same out of the will as the rest of his siblings, none of whom have had to endure the amount of work and stress (and potential liability) as my father.  At the very least, an executor should be paid a % of the estate's assets, in addition to any bequest in the Will.


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## Rosa Klebb

Deiseblue said:


> I know that your father would prefer to have the solicitor discharge the residuary entitlements but to shortcut matters would it not be an idea for your father as Executor to instruct the solicitor in question to lodge the funds in an account designated in your father's name as the Executor of X's Estate .
> 
> Your father could then pay the beneficiaries , I would however lodge the monies due to the single dissenting beneficiary to a deposit account pending a solution to the failure to complete the indemnity.



I think my father would be very nervous about taking on responsibility for that sort of bank account.


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## Padraigb

Rosa Klebb said:


> ...
> My point about acting as executor is that it is all effort and liability and no reward....


No financial reward; possibly even some small expenses that you don't get around to claiming - little things like phone calls, stationery, stamps, short journeys. I have actually found the task rewarding in other ways, most particularly in helping me come to terms with the death of the testator. Yes, there is work involved - it happens to be the sort of work to which I am suited, so it doesn't put me under any intolerable pressure.

So can we agree a middle way: don't agree to be an executor without knowing what is involved in the role, and feeling confident that you are up to it?


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## Rosa Klebb

Padraigb said:


> So can we agree a middle way: don't agree to be an executor without knowing what is involved in the role, and *feeling confident that you are up to it?*



My father is not a weak man.  He is very industrious, and wants things done properly and efficiently.  That is why he is so stressed about his experience of being an executor.  He wants things done properly, and is willing to do whatever it takes to have them done both properly and efficiently, but finds himself thwarted by a solicitor who is lazy, unresponsive and ignores his instructions.  It is incredibly frustrating.


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## Padraigb

I suggest that your father's difficulty is not fundamentally in being an executor, but in dealing with a particular solicitor who you describe as "very uncooperative and unresponsive to calls".

Some professionals (not just solicitors, and by no means all of them) fail to show sufficient respect for their clients' wishes. In such circumstances, it is often best to give instructions very clearly and in written form. A verbal formula along the lines of "I hereby direct you to..." can be very effective. If the professional gets back to say "I don't want to do this" then he or she should be asked to explain why in writing, and the reasoning can then be considered. A straight refusal to obey a direct instruction is a basis for going to the person's professional body.


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## Vanilla

Instead of all of this palaver about the solicitor being lazy, incompetent, etc, when it seems that all they are doing is following Law Society recommended guidelines and trying to avoid your father and themselves being sued- why not make an appt with them, go with your father and sit down and talk about it. 

As a practising solicitor ( and I don't believe any one else on this thread is, whether well meaning or not) I can tell you this is a difficult situation and the solicitor may need guidance from their professional body which is available and will resolve the situation. 

The sooner you make the appt the better.


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## Rosa Klebb

Padraigb said:


> I suggest that your father's difficulty is not fundamentally in being an executor, but in dealing with a particular solicitor who you describe as "very uncooperative and unresponsive to calls".
> 
> Some professionals (not just solicitors, and by no means all of them) fail to show sufficient respect for their clients' wishes. In such circumstances, it is often best to give instructions very clearly and in written form. A verbal formula along the lines of "I hereby direct you to..." can be very effective. If the professional gets back to say "I don't want to do this" then he or she should be asked to explain why in writing, and the reasoning can then be considered. A straight refusal to obey a direct instruction is a basis for going to the person's professional body.



What strikes me about this situation is that the role of client and solicitor seem to have become inverted.  It is the solicitor who is dictating what is happening, and the client is a hapless bystander.


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## csirl

Vanilla said:


> Unfortunately in this world of 'i will do what i like and even if i'm wrong i can always sue someone, hopefully my solicitor' solicitors are wise to be cautious.
> 
> It may well have formed part of the initial letter/contract of engagement with the solicitor which forms the basis on which the solicitor will act. Law Society states that these indemnities should always be obtained. There are guidance committees that the solicitor could obtain a steer from if they are unsure about their exposure where one beneficiary will not sign. I've certainly come across it before and it is a difficult issue.


 
I'd be interested in seeing some case law which supports the Law Society guidelines. Every citizen has a statutory right to sue. I've seen Judges go through people for a short cut for forcing people to sign away statutory rights in other situations. Personally I think it is appalling that a solicitor or executor would dictate that someone signs something like this to receive money which is rightfully theirs to receive without restrictions.


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## Mr. C.J.H.

I am a practising solicitor and can see this from both sides point of view. Obviously the executor and beneficiaries want this all wrapped up ASAP but the solicitor is exercising caution, probably because he fears that if some sort of challenge is brought if the estate has largely been distributed there will be insufficient assets to fund the costs of such a challenge and if this chap were to be successful then a whole host of problems arise. 

If I were the solicitor in that situation I would probably advise that counsel's opinion be obtained on the appropriate course of action. It may also be possible to obtain directions from the Court.


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## Bronte

Mr. C.J.H. said:


> If I were the solicitor in that situation I would probably advise that counsel's opinion be obtained on the appropriate course of action. It may also be possible to obtain directions from the Court.


 
And who's going to pay for all of that, counsels opinion and going to court costs a lot of money.  

Can the executor order the solicitor to put the funds into an account that the executor controls?


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