In a continuing series, the Law Society's practice advice service offers guidance on a range of issues

Q. When home information packs (HIPs) become mandatory on 1 June 2007, I would like to offer the Law Society's on-line HIP to my clients. Where can I find more information?


A. The Law Society is working to develop a product to enable solicitors to prepare on-line HIPs for clients wishing to sell their homes and to sign up. Register interest at hips@lawsociety.org.uk. For up-to-date information, visit the Web site of the Law Society's Property Section at www.propertysection.org.uk.





Q. I am a partner in a firm of solicitors and have been summoned for jury service. My understanding is that solicitors are exempt from this particular civic duty. Is this correct?


A. No. Pursuant to section 321 (schedule 33) of the Criminal Justice Act 2003 and the Criminal Justice Act 2003 (Commencement No 3 and Transitional Provisions) Order 2004, which commenced on 5 April 2004, solicitors are now eligible for jury service.


Jury service - which usually lasts for up to 10 working days - is compulsory for all registered electors in England and Wales, aged between 18 and 70, who have lived in the UK, Channel Islands or Isle of Man for a continuous period of at least five years since the age of 13.



The Law Society has issued guidance that can be found on the Society's Web site at www.lawsociety.org.uk, together with a link to 'Guidance for Summoning Officers', produced by the Department for Constitutional Affairs.





Q. I am acting in a probate matter where several of the beneficiaries are children. The personal representatives (PRs) are concerned about who can give a good receipt on behalf of the children. Is there anything I should consider?


A. Yes, first look at the will to see whether it authorises parents or guardians to give a good receipt on behalf of the minor or whether it authorises the minor to give a good receipt at a specified age (often 16). The Society of Trust and Estate Practitioners (STEP) provisions allow payment of income to a minor beneficiary's parent or guardian, or to the child itself if older than 16.


Even in the absence of such authority, PRs do not need to hold the legacy until the minor is 18. If the legacy is contingent, there will usually be trustees appointed who can hold the legacy. If it is absolute, the PRs can appoint trustees under section 42 of the Administration of Estates Act 1925 to hold the legacy.


For additional guidance, see the Law Society's Probate Practitioner's Handbook, 4th Edition, available from the Law Society Bookshop, tel: 020 7320 5640.





Q. My client has requested a remuneration certificate and is refusing to pay any of my firm's costs. Is it correct that no payment is required until the remuneration certificate procedure has been completed?


A. No. Article 11 of the Solicitors' (Non-Contentious Business) Remuneration Order 1994 provides that the client must pay half of the costs together with all the VAT and all the paid disbursements before the solicitor is required to make the application for a remuneration certificate, unless either the solicitor or the Consumer Complaints Service waives the requirement. The solicitor is not obliged to make the application if the client does not pay the required amount and has not applied for a waiver.





Q. Why is it so important in contentious matters that my client signs and returns a copy of the client-care letter?


A. You should ensure that in contentious matters you hold a terms of business letter signed by your client because the practical effect of rule 48(8) of the Civil Procedure Rules is that without such a signed letter you cannot recover any more from your client than he could recover from the other side.





Q. My client wants to appoint me as an attorney. What do I need to consider in respect of my costs?


A. It is recommended that the solicitor's current terms and conditions of business - including charging rates and the frequency of billing - be discussed with and approved by the donor at the time of granting the power. It is important to comply with the Solicitors Costs Information and Client Care Code 1999.



As information on the prescribed form of enduring power of attorney is ambiguous about the remuneration of professional attorneys, it is recommended that a professional charging clause be included in the power for the avoidance of doubt.


Where a solicitor is appointed sole attorney - or is reasonably likely to become the sole attorney - or where two or more solicitors in the same firm are appointed and there is no external attorney, the donor should be informed of the potential problems of accountability if he should become mentally incapacitated. If necessary, arrangements could be made for the solicitor's costs to be approved or audited by an independent third party in the event of the donor's incapacity (see the Law Society's Enduring Powers of Attorney booklet, which can be found on the Law Society Web site www.lawsociety.org.uk or obtained from the practice advice service).





Q. I act for a residuary beneficiary in the administration of an estate. I cannot trace the executor of the will. What should I do?


A. Where there are appropriate circumstances, the court can pass over the persons entitled to a grant and appoint such person(s) as the court feels necessary. This form of application is particularly helpful where those entitled to a grant cannot be traced or where it is desired to appoint some person who is not interested in the estate as beneficiary or creditor.


The application is made ex parte under rule 52 of the Non-Contentious Probate Rules 1987 to a district judge or probate registrar supported by an affidavit. It is possible to pay a fee of £10 to have the affidavit approved by the registrar (see the Law Society's Probate Practitioner's Handbook, 4th edition).




This column is compiled by the Law Society's practice advice service, tel: 0870 606 2522. Send comments to the service at the Law Society, 113 Chancery Lane, London WC2A 1PL. The service endeavours to ensure that the information provided is correct, but does not accept liability for error or omission. This publication is intended for information purposes only and solicitors should not act on the basis of the information provided alone, without verifying it first