# Solicitor who is co-executor.



## Ger (3 Oct 2009)

A 'will' has the following paragraph.

"1. I appoint my Daughter [her name] of [her address] and Solicitor [solicitors name] of [solicitors address] as the Executors of this my Will."

My question is this. 
In the event of the death of the testator, is there any difficulty in the daughter named in the above paragraph, (who is executor) changing ( immediately) to a different and more convenient solicitor given that the above named solicitor drafted and holds the original document of the Will and is also the co-executor?

Would this change be advisable or what potential problems could arise?


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## mathepac (3 Oct 2009)

Ger said:


> ... Would this change be advisable ...?


Personally I can't think of any good reason for doing this as the other co-executor is still in place (and still a solicitor).  What seems to be the problem?



Ger said:


> ... what potential problems could arise?


The legal costs associated with executing the testator's wishes will at least double for a start and the time-scales will probably also increase with more complexity, files, correspondence, meetings, etc.

Having said that, there is nothing preventing an individual executor (or beneficiary) getting specific personal legal advice.


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## Ger (3 Oct 2009)

mathepac said:


> ......  What seems to be the problem?....


 
In this case, there is no huge major problem and if the changing of the solicitor is troublesome, the daughter (executor) will let thing be and say nothing.
However, it does appear a little unfair in that by the solicitor drafting himself into the will as co-executor, the daughter will be 'stuck' with this solicitor who lives some distance away and the daughter will not be able to get a solicitor of her choice to carry out probate etc.

Is  also appears to be the case ( if you are correct) that the daughter as executor will not be able to 'shop around' in terms of getting a competitive rate for the execution of the will.


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## Brendan Burgess (3 Oct 2009)

Hi Ger

I would strongly recommend against appointing any solicitor as executor. 

Appoint the main beneficiary as executor and they can take legal advice if they need it. They can choose their solicitor and they can fire them if they are dawdling. 

There is no need for a solicitor to be involved.  If there is a need for a solcitor it suggests that the will is too complicated and needs to be simplified.

Get the testator to change the will to remove the solicitor as executor. 

Brendan


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## nuac (3 Oct 2009)

Many solicitors avoid being appointed executors, unless the testator has some reason for  asking the solicitor to act.

If there is no such reason it is not a good idea for the other executor and beneficiaries to be bound to deal with a particular practice if they would prefer to go elsewhere. A probate is a personal/family business and the family should be dealing with someone with whom they feel comfortable. There are about 7000 solicitors practising in ROI and people should be free to chose their own.


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## TreeTiger (3 Oct 2009)

Brendan said:


> I would strongly recommend against appointing any solicitor as executor.


Brendan, why do you say this?  I ask because a relative has recently drawn up a will appointing a solicitor as sole executor and am wondering if this was a good or bad idea.


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## Ger (3 Oct 2009)

Brendan said:


> Hi Ger
> 
> I would strongly recommend against appointing any solicitor as executor.
> 
> ...



Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well.

Is it possible that solicitors may be slightly influenced in appointing  themselves as co-executors so as to secure the business of execution of the will?


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## Brendan Burgess (3 Oct 2009)

TreeTiger said:


> Brendan, why do you say this?  I ask because a relative has recently drawn up a will appointing a solicitor as sole executor and am wondering if this was a good or bad idea.



Because you are giving complete control to someone who has a conflict of interest. 

They often delay distributing the estate and have been subject to complaints to the Law Society. 

If there is property to be conveyed, they will do so at the standard rates rather than at the much cheaper rates available.

But primarily, because they will be in no rush. If the main beneficiary is the executor, they will chase the various banks and other parties to get the information they need and see that it is done promptly. 

Brendan


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## Complainer (3 Oct 2009)

Ger said:


> Is it possible that solicitors may be slightly influenced in appointing  themselves as co-executors so as to secure the business of execution of the will?


Is the Pope a Catholic?
Does a bear....


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## mf1 (3 Oct 2009)

"Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well."

Lads! Has it occurred to you that perhaps these are the testator's wishes?

I only ask. 

Personally, as a solicitor, I would resist being appointed as executor unless I have a very personal connection with the testator BUT sometimes it is the testator's wish.

mf


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## Ger (3 Oct 2009)

The reason I am alert to this situation is that a similar situation occurred before in my family before on the death of one of my own parents. I was the co-executor along with the solicitor. He explained to me that the reason why he had suggested to the deceased that he be made co-executor was that it is possible that the family executor can die or emigrate or be unavailable to co-operate or unavailable to take up the duty as executor and that it is only in that case that he (the solicitor) becomes active as an executor.
He resigned his position as executor (which he stated he normally does) once I had agreed to proceed with the execution of the will and had accepted the position as executor and I signed something to that effect.

Perhaps I am being a little suspicious here but I am wondering would he have resigned as co-executor had I had been taken my business elsewhere?

Anyhow, he charged approx € 8,000 for the job afterwards and it was fortunate (for the solicitor as well) that the deceased had savings that he could withdraw from as there were still loose ends (e.g. House registrations) that were forgotten about and are only been tidied up now .(The fact that the properties were not registered became apparent after 4 years when one of the beneficeries needed to raise a loan. The solicitor reluctingly gave a letter of undertaking to temperoraly fix this quickly). Ideally, I should not have paid his bill until this work was done but unfortunately (within a few months of the death) I as executor signed something authorising the release of bank funds to be paid to beneficeries (who were anxious for their money) and his bill was included in this.
Anyhow, a similar situation could possibly occur in the wider family the second time around (but with a different solicitor) and I am just wondering what can be done or what choices are out there.


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## Complainer (4 Oct 2009)

Ger said:


> Unfortunately, changing the will is not an option as the testator is in his mid eighties and in hospital and is happy that all is well.


I don't see why this rules out a change. The co-executor could raise this matter and arrange for a simple change to be made. Ideally, someone with no beneficial interest in the will should be one to bring this up.


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## nuac (4 Oct 2009)

_In case there is some misunderstanding, a will is a confidential document and is not discussed within the family and beneficiaries unless so directed by the testator._

_Otherwise nobody sees it until testator dies_


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## Ger (4 Oct 2009)

nuac said:


> _In case there is some misunderstanding, a will is a confidential document and is not discussed within the family and beneficiaries unless so directed by the testator._
> 
> _Otherwise nobody sees it until testator dies_



I agree with you here and this issue has not been generally discussed. The only reason the 'daughter' confided in me was that I had acted as executor in another will. 
I would be 100% against any interference now. What if the testator decided to draw up a new will and change the terms? Indeed, I generally think maybe that it would be best to leave well enough alone, at least for now.


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## Brendan Burgess (4 Oct 2009)

> Lads! Has it occurred to you that perhaps these are the testator's wishes?



It could be the testator's wishes, but is it not more likely to be the solicitor trying to get some work for themselves? 

Fair play to you mf1 for declining to be appointed executor. Are there Law Society guidelines on this by any chance?


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## Vanilla (4 Oct 2009)

There are no law society guidelines on whether or not solicitors should act as executor.

A solicitor is often a good choice to act as executor. They are aware of the liability an executor is exposed to, they are not a beneficiary, they are neutral to any family feuds that may be going on, they know all there is to know about probate/wills/CAT and tax planning and any land transmissions necessary. It is in the best interest of the solicitor to finalise the estate quickly, in order to obtain their fee and also keep the beneficiaries ( potential clients) happy and show them a good service. Nobody will feel passed up if the solicitor is the executor ( sometimes one sibling might feel hard done by if another is the chosen one). 

When I take instructions for a will I ask the testator who they would like to appoint as executor. If they don't know or understand fully what an executor does then I explain it- this is quite common. Sometimes people come in with a pre-concieved notion that their solicitor must be the executor, this is quickly disabused. Some people come in and clearly have a difficulty choosing a family member to act. I would normally present them with different options- a family member, spouse, trusted friend, accountant, solicitor. It is entirely up to the testator and everything is explained fully to them.

The suggestion by Brendan is that a solicitor shouldnt act as there is a 'conflict of interest'. This is, I assume, because of the fact that if a solicitor is sole executor then they can insist that their firm deals with the probate and therefore can charge whatever fee they like. This is simplistic and, to me, another example of Brendan's antagonistic attitude to solcitors lately. 

It is true that if a solicitor is appointed sole executor that they CAN insist their firm deals with the probate. However in reality, if there is family opposition it is more than likely that most solicitors would simply renounce. Even if they didn't and there was a contention by the family that the fee charged was too high, the beneficiaries have recourse to either the law society or the taxing master.

Although it may be hard to believe in this anti-solicitor age, there are many people for whom their solicitor is someone they trust to carry out their requests after they die, and to whom, allowing them to appoint their solicitor their executor gives them great peace of mind.


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## Brendan Burgess (4 Oct 2009)

Hi Vanilla

I didn't think that I was particularly anti-solicitor lately. I must review my posts. 

I don't believe in using solicitors when they are not necessary. Of course, solicitors know all about probate, tax, conveyancing etc, so the executor can ask a solicitor for advice. 

I appreciate the point about family feuds. But the solicitor drafting the will should make it very clear to the testator that the will should be clear and easy to execute. I have read a will recently that is just so unnecessarily complicated, that it will take up a lot of legal time in the courts sorting it out. 

My sample might be biased. I have done one probate myself and did it promptly without the use of a solcitor. I know other lay people who have done them as well. The few I am familiar with where solicitors were involved went on and on and on and on...

And I presume if the beneficiaries are unhappy, there is very little that they can do in practice about the solicitor?


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## Vanilla (4 Oct 2009)

I could also make the point that having an 'outside' executor is often a waste of time. I deal with quite a bit of probate. The vast majority of the time, although I take care in explaining every thing to each executor, being an executor means little more than signing where the solicitor tells you to. From my point of view in these cases having to wait for the executor to call to approve, instruct or sign off on documents is actually delaying the estate. 

These days extracting a grant of probate can take between 3 months to a year. It rarely goes beyond a year except where there is a problem of some kind. 

The point has been made on AAM over and over again- in all professions there are good and bad- so Brendan may have experienced estates which 'went on and on and on' but these would be the exception. Most probates are handled efficiently, quickly and quietly but these are the ones you don't hear about, naturally.

If beneficiaries are unhappy with a solicitor they have more powers than if the executor were a lay person, because on top of all the redresses in the Succession Act against a misbehaving executor you have all the additional layers of complaint against the solicitor, ie complaint to the law society, negligence action, disciplinary tribunal, compensation fund, taxing master.


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## Artois (4 Oct 2009)

Brendan said:


> Because you are giving complete control to someone who has a conflict of interest.
> 
> They often delay distributing the estate and have been subject to complaints to the Law Society.
> 
> ...


 
Generally Solicitors seek to avoid being appointed as executor and will only do so if their client specifically requests them to act.

A competent Solicitor has a vested interest in progressing a probate as quickly as possible in order to get the file closed and to get paid. Brendan's statement implies that Solicitors who delay probate are the norm and not the exception. His statement is misleading and is not correct.

In addition to the valid reasons set out by Vanilla the testator may wish to engage a Solicitor as executor to protect a weaker family member's interests from a more dominant sibling in essence to prevent one family member bullying another.


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## Bronte (5 Oct 2009)

I do not agree that in general solicitors decline to act as executor.  The precise reason that wills are so cheap to draw up is because in most cases the solicitor drafting the will ends up as executor to the will.  Probate is one of the greatest fee earners for solicitors.

In my case I have my solicitor as co executor precisily because I trust that person to be neutral and to act in my best interest after my death.  I also know that the fee will be negotiable and if there are conveyances for example that they won't be done at the scale fee level.  In most cases this will not happen and the estate will be charged the full fee so it would really be pointless taking it to the taxing master.  

I have yet to meet a person who said probate was quick and easy via a solicitor's.


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## MOB (5 Oct 2009)

Folks,

I have no idea how common it is for solicitors to 'insert' themselves as executors.  I never do and have on more than a few occasions over the years had to refuse where the client wanted it and the circumstances manifestly suited, because I am not prepared to be accused of favouring myself over beneficiaries.   I would say in general that the solicitor-prompted insertion happens rather more often than I would like, but far less often than one would imagine from reading this thread.

I will also say this: Bronte's perception ( if I may paraphrase it) that 'solicitors generally are not great but my fellow is alright'  is a very common attititude among clients.  My perception is that a very small number of bad apples have given a stinking PR problem to the vast majority of hard working solicitors.

Brendan, the idea that " If there is a need for a solicitor it suggests that the will is too complicated and needs to be simplified......." is just too simplistic.   Sometimes a will has to be complex, because people's circumstances warrant the complexity.   Among those who certainly need a solicitor to prepare their will and subsequently to help administer their estate are:

Parents of minor children.
Parents of warring adult siblings.
Those who may have estates sufficient to trigger large inheritance tax bills.  I can show you estates where - without in any way altering the ultimate distribution of an estate -  one wording of a will could generate a large inheritance tax bill while another wording could totally avoid such a liability.   

Many simple wills can indeed be administered without the help of a solicitor.  Alternatively, the work can be subbed out to a solicitor in discrete chunks.  I have often done a simple probate where I got out the grant of probate at a fee of circa €1200.  This fee was to simply go through the process of getting the grant - leaving it to the client to deal with the assets.   Certainly it would have been cheaper for the client to do this themselves - but my fee was perceived as value, which is the whole point.  

Where things come unstuck is the client who insists that he\she 'only wants a few simple forms processed' [and yes - I have been stung this way more than once]  but then expects you to sort out a land lease with the farmer who had the land from the deceased for the last few years, sort out the single farm payment; get the herd number transferred; deal with a claim by department of social welfare for overpaid means-tested benefits which the deceased previously had, check if there is a tax refund from last year, track down the priest mentioned in the will for masses rather than just give the money to the current pp,  write to ten beneficiaries to get details of their previous inheritances in sufficient detail to correctly fill out the revenue returns, possibly end up filing inheritance tax returns for some of those beneficiaries arising from the present inheritance; field phone calls from ten other beneficiaries because executor can't be bothered keeping them up to date, find out how much the deceased got for a site sold three years before death etc. etc.

Many solicitors, myself included, will conduct an initial probate consultation by asking:

A. Do you need to extract probate at all?
B. Do you need the services of a solicitor to do so?

And only if it becomes clear that client either answers yes to both questions will we open a file for the matter.

It is unfortunate that some posters seem to have had bad experience with the probate process;  I would like to think that not all of this was the fault of solicitors.  Sometimes life is just complex and convoluted.


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## MOB (5 Oct 2009)

Bronte said:


> I do not agree that in general solicitors decline to act as executor.  The precise reason that wills are so cheap to draw up is because in most cases the solicitor drafting the will ends up as executor to the will.  Probate is one of the greatest fee earners for solicitors.



Just to contradict one element of this.  Certainly, one of the reasons solicitors are happy to draft wills either cheaply or for free is that the will represents a source of future fee income.  However, having the will in your safe and being 'first up to the table and best dressed' in terms of getting the work in the administration of the estate is one thing.  Actually being executor is another.   It is not true that a solicitor ends up as executor in 'most cases'.

And while we are on the topic, it is worth analysing the 'business case' for getting wills done cheaply.  The reality in Ireland today is that a solicitor's practice is much less saleable an asset that it used to be.  The days when a solicitor could rely on the sale of a practice to fund his\her retirement are long gone.   I don't know what age you are Bronte but it is a safe bet that most people making wills for the first time will be younger than their solicitor.  It usually arises when people are buying their first house or perhaps after they have a child.   The solicitor making that will already has these people as clients.  They probably won't die for 30+ years and the solicitor will by then have retired.  If they move to another solicitor for their next house purchase, chances are they will make a new will anyway.  So in an era when the 'client for life' and the 'family solicitor' are both an endangered species, is there really a profit in charging nothing now for a will?  

Maybe there could be another reason for the low fee.  Perhaps the solicitors ethically-motivated wish to put no financial obstacle in front of this important task ?


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## Bronte (5 Oct 2009)

MOB said:


> . It is not true that a solicitor ends up as executor in 'most cases'.


  Do you meant that most wills nowadays are administered by a solicitor from people walking in waving a will at them?


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## Vanilla (5 Oct 2009)

Something that I didn't say and I should have- the vast majority of people making their wills in my experience appoint their spouse or a family member as executor. 

The executor is the person who has the power to decide which firm of solicitors ( if any) deal with the estate.


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## Brendan Burgess (5 Oct 2009)

MOB



> Among those who certainly need a solicitor to prepare their will and subsequently to help administer their estate are:



100% agree. I always recommend to people to get their will drafted by a solicitor. 

I would also recommend that they take legal advice when administering the estate.

Brendan


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## mf1 (5 Oct 2009)

Bronte said:


> Do you meant that most wills nowadays are administered by a solicitor from people walking in waving a will at them?



I think that most of the regular legal posters on this Board are probably from very similar practice backgrounds - we would have a client base built up over many years where people would consistently use our services and would recommend their family and friends to us. Primarily, because, when it all hits the fan, as a client, you want someone who knows you, that you trust, to act on your behalf. 

Any of the Probates I have done in recent years would be from such clients - perhaps it is a will I drafted  for a client or the will of a client's parent or family member. A lot of clients are very loyal to a particular solicitor or practice - equally, a lot of clients want the cheapest service possible. 

Client's are extremely price sensitive and will always ask for a fee quote and are  entitled to a Section 68 letter setting out the proposed fee structure. 

So, in answer to the question above : a lot of people will shop around for the cheapest quote. A lot of people will choose to do the Probate themselves. A lot of people are happier to hand it over to someone who knows what they are doing. 

mf


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## MOB (5 Oct 2009)

Bronte said:


> Do you meant that most wills nowadays are administered by a solicitor from people walking in waving a will at them?



Hi Bronte;
No - it is still the case that the vast majority of wills which we deal with will be wills which were prepared by the office.  The point is that a solicitor in my office will not have been named as executor.  The named executor is perfectly free to use our services or those of any other solicitor ( or none).  

But when we prepare a will today for a young couple in their 20's\30's\40's, we do so in the knowledge that the unstoppable trend is for fewer people to choose a solicitor for handling the administration work merely because he\she has the will, for fewer people to stay with one solicitor from their 20's through to pension and death and even when they do, for a solicitor's practice to be a not very saleable asset compared to what it used to be.   So the argument that by getting the safe full of wills we are somehow setting up a golden trove for the future just doesn't hold the kind of water it used to.


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## Ger (5 Oct 2009)

Hi .
I'm just wondering is there any straight answer to my  question in the Original Post which is (with some clarification)
"is there any difficulty in the daughter named in the above paragraph, (who is executor) changing ( immediately after the death of the testator) to a different and more convenient solicitor given that the above (named in will )solicitor drafted and holds the original document of the Will and is also the co-executor?"


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## Madangan (5 Oct 2009)

If by straight answer you mean "Yes" or "No" then no there is no straight answer as the answer is"it depends"!

If the co-executor solicitor is prepared to reserve or renounce their rights then your friend the other executor is free to take out the grant herself or appoint whomsoever to do so on her behalf.

The solicitor co-executor may (a) be delighted to walk away or(b) be seriously peeved but walk away anyway or(c) refuse and insist on taking out the grant!

I can think of scenarios where I could adopt any of the above attitudes including but not exclusively the following

(a) walk away delighted to be shot of what may be a difficult probate by virtue of having difficult clients or knowing that disagreements were likely between beneficiaries etc.. I walk away grinning like the proverbial cheshire cat 

(B) be seriously annoyed by virtue of having  given a lot of assistance to the testator over the years,having been expected to show loyalty to those clients over the years in terms of work done and low fees charged..I walk away because to stay would only involve grief that I dont need but this time no grin and possibly a scowl

(C) I refuse to walk out of respect for my deceased client who wanted me to act as executor not because I cajoled them into it or pulled the wool over their eyes but because I had earned their trust and respect and because they did not want any of the beneficiaries to act ot to act solely!

I have done (a) and (b) in the past and will again in the future. I have never had to do (c) but have been prepared to  in one case where I fully expected to be asked to renounce but in the end was not and was actually thanked by the beneficiaries later(separately) as I prevented a bad family dispute from escalating into an irreparable breach by virtue of ultimately having been seen as an honest broker.

BTW I agree with the sentiment expressed by most if not all of the  posting solicitors --I try to avoid being named as executor as much as I can!!


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## Ger (5 Oct 2009)

Thanks all for your advice. Incidentally, the aged person (testator) in this case dealt with his local solicitor for many years and had already made a will. However, about two years ago, he had a falling out with his local solicitor over some small detail and in a huff travelled to another town and re-made his will with a strange solicitor.
The daughter in this case thinks that her father had acted a little unreasonable and would like the opportunity to revert back to her local solicitor (whom she thrusts and would find more convenient) if this was not too much trouble.


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## mf1 (6 Oct 2009)

"The daughter in this case thinks that her father had acted a little unreasonable and would like the opportunity to revert back to her local solicitor (whom she thrusts and would find more convenient) if this was not too much trouble."

And is it now clear to you that she, the daughter, is not the testator , who made the will and is entitled to have his wishes carried out, and is not the "lead" executor but one of two executors who between them ( unless the solicitor renounces per Madangans excellent post) decide how best to administer the estate.

mf


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## galleryman (6 Oct 2009)

I know of one solicitor who took a crazy amount from an estate from a relative of mine, I'm talking not far off 6 figures from a typical 2007 housing boom estate. He wrote himself in as co-executor in the Will that he drafted. I have seen the Will and there is no mention of him being entitled to charge any fee. I have no idea if he put it all down to expenses or if in included some fees.  It seems like he took advantage to me. 

As far as I know an executor can only claim back reasonable expenses but not charge a fee. If a solicitor is also named as executor but there is no charging clause in the Will, is that solicitor entitled to charge a professional fee on top of his/her expenses?


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