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Nicholas Beetham describes the options when it comes to instructing a genealogist
Journal
Genealogy
Costing solutions to common
executry problems
Each year, a number of solicitors and other practitioners
involved in executry administration will experience
problems finding beneficiaries. Sometimes they will be
able to find the missing heirs under their own steam or
might approach an outside specialist for help. If not, an
approach to an insurance company for a Missing
Beneficiary Indemnity (MBI) may solve the problem.
However, underwriters of MBIs are becoming much
more selective about the risks they take on. They will
often require research to be undertaken to try to find
the stray beneficiaries before considering the risk in
detail. Most of the time, a report from a reputable
genealogist will satisfy them that all reasonable steps to
find the beneficiaries have been taken before they go on
risk. In fact, the research needed to satisfy the insurers
will frequently uncover the missing heirs and obviate the
need for the indemnity.
How to instruct a genealogist
A professional firm will be looking to help you close your
file as soon as possible. It really does help if you can
submit as much information as possible at the outset so
that the researcher can write you a reasoned
assessment of your case. This will give you his view of
your problem and how it can be solved and should also
discuss costs and time-scales. On receipt of this written
expert opinion, you can consult with your lay client and
then go ahead and instruct the researcher accordingly.
The investigation can start immediately thereafter.
Costs – who pays?
One of the questions that comes up regularly is as to
costs – or, more specifically, where should the costs of the
MBI and / or the research lie? Conventional wisdom
suggests that, just like the solicitors and others providing a
professional service to the executry estate, insurers’ and /
or genealogists’ costs should generally be regarded as an
expense of the administration as a whole, rather than
being offset against any particular share or shares in it.
The estate?
With this in mind, practitioners will usually instruct
genealogists to locate missing beneficiaries on a
recorded time and disbursements basis, at the expense
of the estate as a whole.Typically, the researcher and his
instructing principal will agree a budget figure within
which the researcher makes such enquiries as the
budget can support. Perhaps further enquiries will be
necessary. If so, the researcher can negotiate a fresh
budget figure with his client and the investigation will
continue. This is an entirely transparent approach: the
solicitor, as instructing principal, can call the researcher to
account for the monies spent and to demonstrate the
nature and quality of his enquiries – and their results.
Next of kin enquiries can be notoriously unpredictable
in scope and duration. However, as long as there is good
communication between solicitor and researcher, and
recognition that the ultimate span of the investigation
may differ from that anticipated at the outset, matters
should move along smoothly. Most importantly, the
practitioner (and his or her lay clients) can direct the
pace of the investigation and are in control of its costs.
If necessary or desirable, the practitioner can apportion
some or all of the costs of finding one or more heirs
against their shares in the estate in question.
The beneficiaries?
Most firms of genealogists will typically offer their
practitioner clients a range of costing options for
locating missing heirs. Many will include a “contingency
fee” option.This will usually involve the researcher acting
independently of the practitioner and seeking to agree a
commission-based “contingency fee” with each heir he
locates.This practice can be very lucrative as commission
fees range from 5% or 10% to more than 30% (plus
VAT) of the share in the estate due to each located heir.
What’s the difference?
Perhaps this is a good place to distinguish between (i)
the researcher’s recorded time and disbursements and
the extent to which (if any) they are apportioned against
any specific shares in the estate and (ii) the “contingency
fee” approach charged by the researcher (and its level –
often decided without reference to the practitioner or
the executors) which will always fall wholly on the share
due to the located beneficiaries.
To the practitioner the “contingency fee” approach can
seem outwardly attractive, especially when they (and
their executor clients) are told that the costs of finding
missing heirs will be “at no direct cost to the estate” as
is widely claimed. In fact, this is simply not correct – as a
glance at the payment of the “contingency fee” to the
genealogist in the estate accounts will reveal.
True contingency fee?
I’ve placed the expression “contingency fee” in inverted
commas in the context of heir location in this article
because it seems that these arrangements are not true
45 April 2003 Volume 48 No 4