“People make homemade wills even for estates valued around €3-€4 million, they can cause chaos and are ripe for challenge,” says solicitor Maeve Carney. “I know it sounds like solicitors advising against homemade wills because we will lose out, but that is the reality.
“Maybe one in 10 wills we see will be challenged, but often there is no way of knowing a challenge will come,” adds Carney, a specialist probate lawyer.
“The issue of the testator’s capacity is often raised. Proceedings can easily wipe out an entire estate if there is a capacity challenge. Capacity must be high on the agenda of solicitors when dealing with clients making wills.”
Carney’s views were echoed by other solicitors who spoke to The Irish Times about the costs and challenges relating to making wills, administering estates and dealing with will disputes.
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For most people whose main asset is their home, with maybe a modest pension and savings, there is general agreement that the average costs of instructing a solicitor to make their will range from zero to several hundred euro.
Making a will when the estate is more valuable and/or complex can cost multiples of that. Irrespective of how much an estate is worth, the price of not making a will, or making an unclear one, is likely to run well into six figures if a High Court dispute results.
The most recent complaints report by the Legal Services Regulatory Authority (LSRA), published in April, shone a spotlight on the nature of complaints relating to probate, citing some case studies.
When upholding a complaint of inadequate legal services and excessive costs in one particular case, the regulator directed the solicitor involved to transfer the file, pay €5,000 compensation, and waive €16,000 in fees.
Among the complaints not upheld was one by the nieces and nephew of a deceased woman who alleged that the woman’s solicitor, when drafting her will, had carelessly left them out. The regulator found the complainants had failed to show the will was not drafted in line with their aunt’s instructions.
The report offers some insight into the issues that consumers, and solicitors, can face in probate matters. It sets out key points towards avoiding problems, including that solicitors act promptly when instructions are received and provide clear information about likely costs for acting in the administration of an estate.
Carney endorses those points. At her firm Lawlor Kiernan, a will costs from €500 plus vat at 23 per cent, and the cost can run to several thousand euro for a “full service”, including tax advice where appropriate.
Where a dispute arises, mediation is more cost-efficient and faster than litigation, ‘but there has to be a willingness to do it’, Maeve Carney says
Savings by high-end clients can be “multiples” of the legal costs, she says. “The more assets a client has, the more they need better advice to make their assets more tax-efficient now. A big objective is to make a tax-efficient will.”
Wills with trusts involve additional costs, and the firm deals with many cases relating to provision for children with disabilities whose settlements are put into trusts.
Fees quoted for estate administration are generally based on the expected number of hours that will be involved, she says.
Solicitors are required to provide clients with a costs estimate via section 150 notices, she points out. “We would generally try and agree the fee at the outset. We may have to revise the initial fee if there is a challenge to a will or an issue is raised about capacity. It is very rare for us to depart from what is set out at the start.”
Tax clearance requirements can lead to additional costs, she notes. Tax clearance is required to sell property, and a Capital Gains Tax return must be provided. Fees may also vary considerably depending on the number of beneficiaries and their location.
Carney has experience of estates being “a complete mess”, and says the effectiveness of the administration often depends on the approach of the executor.
Where a dispute arises, mediation is more cost-efficient and faster than litigation, “but there has to be a willingness to do it”, she says. “People can feel there is little cost to them to bring a challenge because costs usually come out of the estate from which they are not benefiting.”
Meath-based solicitor Elaine Byrne, another probate specialist, shares Carney’s concerns about homemade wills, describing them as “a false economy”.
The cost of making a will with a solicitor is “relatively modest”, says Byrne.
The solicitor will take full instructions, advise on the will, give general tax advice and advice on any concerns regarding a will being challenged and any safeguards, she says. The solicitor will look at the client’s family circumstances and, for clients with very significant assets, there is full estate planning, including working with tax advisers and others.
The fee “importantly” covers the solicitor taking attendance notes – for example, details about the client’s capacity, she says.
Her firm charges €350 plus VAT for one will, and €550 plus VAT for two. “The margin is actually tight at this, as there is a lot of time involved in making a will and getting it right.”
The fee will be higher for a more complex will. “I would say there is a broad price range, and for anyone considering making a will, it is good to price around.”
In the past, some solicitors would have offered a “free will” as part of a conveyance or other matter, notes Byrne.
There are specialist firms in Dublin, likely catering for wealthier clients, where fees start at €500 plus VAT for an initial consultation and go upwards from there, she says.
Probate - administering an estate - can be looked after directly by an executor, relative or friend of a testator, she says. “I have seen cases where the probate was taken out but where appropriate clearances where not followed in relation to the follow-on steps, such as vesting of property into the name of a beneficiary.”
Solicitors’ fees can be based on a percentage of the estate, typically 1 to 3 per cent of the gross estate, she says. Some solicitors bill per hours involved, for example €350 per hour plus VAT, but this is “not always very helpful” for the client, as an indication would be necessary regarding the time involved. Others set out a flat fee and that “could be between €5,000 and €15,000”.
VAT at 23 per cent applies on a solicitor’s professional fee, and other costs will include probate office, stamp duty and land registry fees, she adds.
A Section 150 notice will give an indication on costs “on the basis of all being straightforward” and, if a dispute develops, a new Section 150 notice would be furnished.
Where legal proceedings issue but then settle without a court decision, costs could range from €20,000 to €50,000 but, for a fully contested High Court action, the costs could be from €100,000 to €150,000 “and beyond”, she says.
Byrne’s firm would only take on a challenge if it considered it was “a bona fide one”.
A delay in probate can result in additional tax liabilities, such as in situations where a property sale is delayed and the property value increases, solicitor Andrew Coonan points out
“An angry and disappointed family member can confuse emotion with an actual legal case.”
Legal costs are usually paid from the estate but, if the claim is deemed without merit, the person bringing the challenge could up paying their own costs and those of the defendant.
Andrew Coonan, a partner at Naas-based Coonan Cawley, says the firm tries to keep the costs of making a will as low as possible, because they believe people should be encouraged to actually make wills.
Their fee for a “basic” will, often involving a married couple with adult children who want to put their affairs in order, is €250.
For administering an estate, his firm charges an hourly rate, ranging from about €250 for a junior solicitor to €400 for himself, and clients are given a ballpark estimate of the overall costs. That might range between €4,000 and €5,000 but, where an estate is more complex, perhaps involving multiple beneficiaries and/or assets in multiple locations, the fees increase.
“US assets are generally difficult to deal with – the Inland Revenue Service is very slow.”
Clients are kept up to date with costs via a case activity report, showing the time spent, what documents are generated, and who worked on them. Executors are notified of any developments likely to impact significantly on the ballpark estimate, adds Coonan.
“Problems can emerge at a later stage – a beneficiary might become truculent.”
His firm is currently participating in a Probate Office pilot project aimed at streamlining the probate process. Using an online probate portal, the scheme started last month, and Coonan is impressed to see it can lead to the completion of probate within two to three weeks.
There have been times when probate could take more than six months, he noted. A delay in probate can result in additional tax liabilities, such as in situations where a property sale is delayed and the property value increases, he points out.
There is also increasing resort to mediation when disputes arise, says Coonan. Mediation costs about €10,000, plus solicitors’ costs, but is “significantly cheaper” than the High Court and, if successful, is money “very well spent”.
A “tiny minority” of disputes do end up in the High Court, says Coonan. “Because sometimes common sense is not that common”.
