Cutting out the solicitor

THE legal professions have been sheltered from effective competition for as long as anyone can remember.

The situation is changing but only slowly. Many of the proposals in Justice Minister Alan Shatter’s new Legal Services Regulation Bill that is currently before the Dáil have been around for decades. There must be a suspicion they are part of the bailout agreement and only now getting legislated for because of pressure from the troika.

But some obvious and desirable changes are being long-fingered again insofar as the legislation only requires the proposed Legal Services Regulatory Authority to consider them.

While we are waiting for change the professions have been consolidating their position. The Court Service, for instance has made it more difficult for individuals to take out probate themselves. But the plain fact is that you don’t need a solicitor to take out probate, particularly where the will is a straightforward one.

A Grant of Probate is simply a court authorisation, given to an executor, to take charge of the deceased person’s assets. You apply to your local probate office; there are 14 around the country. The Dublin office is: 1st Floor, 15/24 Phoenix Street North, Smithfield, Dublin, 7. Phone [phone]. You can access information and download forms from the Courts Service [e-mail].

The application is made on a two-page form, accompanied by details of the deceased person’s assets and liabilities, outstanding debts, etc. Collecting that information is the hard part. Having a solicitor might help but you’d possibly have to do most of the leg-work yourself. Later, you’ll have to produce original statements of assets, the death certificate, the will and pay a fee, which is charged on a sliding scale. For a personal applicant it’s €270 on the first, €125,000 and €24 per €31,250 thereafter.

It takes no great skill to take out probate on the average estate and for many bereaved it can be therapeutic. Doing the job yourself beats waiting around for progress reports from a solicitor. It can also be less costly, despite the Court Service now operating a dual schedule of fees, one for solicitors and another for the rest of us. The solicitors pay half price.

For instance, a solicitor taking out a grant of probate on an estate valued at €750,000, pays €375 in fees. A non-solicitor taking out the same grant of probate is charged €750. It’s unfair and discriminatory but that’s the way it is.

However, even with the extra probate office fees, there is still money to be saved by taking out probate yourself. When solicitors were allowed to have an agreed scale of charges for probate work they charged 2% on the value of the estate, plus VAT and expenses. Some solicitors may still use that formula when calculating their charges. Some may even charge more, but even a 1% fee represents a significant charge on even relatively modest estates — €5,000 on an estate worth €500,000 that may comprise little more than a house.

With the standard scale gone, there is some competition in the market and some solicitors will quote a flat rate. It pays to shop around, but with a restriction on advertising and with few solicitors willing to quote over the phone, it can be difficult. But even at their cheapest the solicitor’s fees for taking out probate are sure to dwarf the relatively minor saving in probate office fees. So there are significant savings to be made dispensing with the services of a solicitor and paying the higher probate office fees. But that still doesn’t excuse the Court Service’s discriminating fees structure.

It can, of course, claim there is more work involved in providing a grant of probate to a non-professional. Undoubtedly, there is in some cases. Solicitors may be as demanding on the time and expertise of the Court Service as any member of the public. Many solicitors will get their clerks, who may have had no formal training or experience, to do the job. The Law Society does not have a great regard for their clerks. They won’t accept them as trainee solicitors until they have worked a full 10 years in a clerking role.

The suspicion must be that the Court Service was responding to pressure from the Law Society lobby in adopting this dual fee structure. It was introduced quietly, without any fanfare, and is totally against the spirit of the recommendations in the 2007 Competition Authority’s report, which were aimed at diminishing the monopoly power of the legal profession.

Solicitors have an effective monopoly, for instance, in the provision of conveyancing services. It is illegal for anyone other than a solicitor to provide and charge for such services. That’s not the case in many other countries. In Britain there is a para-legal profession of conveyancer. Costs dropped significantly when they were introduced.

It makes sense but it requires a change in the law and Mr Shatter has been effectively dragging his feet on the issue. Building Societies were to be given the right to provide conveyancing services under a 1989 Act. All that’s needed is a ministerial order but that order was never made and now the issue has been long-fingered again by simply putting it on a list of items to be considered by the proposed Legal Services Regulatory Authority.

So competition remains limited and solicitors will fight hard to keep it that way. Before the property boom, conveyancing accounted for almost a third of their fee income and even in the current climate, it remains a lucrative business.

But back to taking out probate. On request the probate office will send out an application form which should be completed as fully as possible and returned. The probate office will immediately acknowledge receipt of the form and will ask the applicant to call in for a preliminary meeting. At that stage the applicant should present full details of the estate, a death certificate and the original will, if there is one. Statements of deposit accounts held by the deceased should be produced as well as details of assurance policies and all assets owned by the deceased.

A second meeting will be arranged to finalise any outstanding matters and the applicant will then be required to sign the completed documents, swear to the truth and accuracy of their contents, and pay a fee.