Question: My father died a couple of months ago and his will is with his local solicitor. I was appointed as executor and live some distance away so I want my own solicitor to look after probate. I contacted the original solicitor to get the will and he is after coming back with a big bill before he will release it and getting me to sign all sorts of forms. I am really annoyed by this. Surely I am entitled to what belongs to my father, which he already paid for. Have you any advice?

Answer: The Law Society’s Probate Committee has issued new guidance on a number of issues relating to will storage, release of wills and the charging of a fee.

They recommend that the safest place for a will is in the solicitor’s will safe as the consequences of not having the original will to administer the estate can be catastrophic. Consequently it is not recommended that people store their original wills in their home. Banks and other financial institutions do not store assets for safekeeping for clients.

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Missing wills

Despite what people think, a will is not registered in any central register. Thus it is important to ensure that the executor (the person appointed to administer the estate after the person has died) knows where a person’s most up-to-date will is.

While most solicitors keep the original will in a fireproof safe and have a scanned soft copy in their document management system, original wills can go missing. That is why it is recommended that a testator (person who makes a will) keeps a physical copy of their will somewhere safe and lets the executor know where it is located if they need to access it.

In the absence of the executor knowing the location of the original will or where people are unsure whether any will was made, the normal procedure is for a solicitor acting for the next of kin to email other solicitors in the same county after a person has died, to ask them to check their safes and to confirm whether they have a will for that person. Notices can also be issued in the Law Society Gazette, which is a publication issued to all members of the Law Society.

Scrivenery fee

A scrivenery fee is an administrative fee charged by a solicitors office for the administration involved in typing, formatting, printing, binding and handling legal documents. The Law Society recommends that where the testator (the person who made the will) or executor (the person appointed to administer the estate after the person has died) chooses to remove the will from a solicitors office, it is appropriate to charge a scrivenery fee. This covers searching the wills register, finding the will, taking it out, making a copy and arranging for the collection of the will by the person concerned and the drafting and execution of a receipt for that will. While the Law Society does not recommend any particular charge, most offices tend to charge somewhere between €100 - €200 plus vat at 23%. While you don’t outline how much the solicitor is charging, if it is a lot more than this, it is worth pointing out that this is the usual rate.

Release of the will

When releasing a will to an executor, it is recommended that this take place in the solicitor’s office and that the executor signs a receipt acknowledging that they have taken possession of the original will. This receipt might also include a statement attesting to the plight and condition of the will at the time of collection. This will describe and explain the physical state in which a deceased person’s will was found.

Probate registers or courts require this statement when a will has physical anomalies that raise questions about tampering, alteration, or accidental damage to the will. Common issues include tears or rips on the paper, staple or pin holes indicating another document was once attached and removed, stains, burn marks or water damage etc. The statement should also include a confirmation that collecting the will ceases the office’s involvement in the matter.

Storage fee

The Law Society recommends that if a solicitor intends to charge a fee for storage of a will, even a nominal one, this should be raised in the letter of engagement and agreed with the client. It should also be included in the Section 150 Notice (Fee Estimate) and Section 152 Bill of Costs when drafting and executing the will.

Where the firm has a number of earlier wills of a now deceased testator, the firm may consider making these available with the most recent will. This ensures that these earlier wills are available if any issue arises regarding the final will.

Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie