Does instructing a probate genealogist worry you?

Every practitioner will, at ?some stage in their career, hit the proverbial road block when administering an estate. Regardless of whether a deceased has died intestate ?or testate, there are always occasions ?where records or beneficiaries have gone missing and names and potential heirs seem impossible to find. In many cases the subjects have either completely disappeared or they ?are an unknown quantity. So what do you do next?

The answer is to approach a professional forensic genealogist, who will determine and resolve identities and establish the current whereabouts of possible beneficiaries or next-of-kin on testate or intestate cases.

Missing beneficiary problems ?seem to arise relatively (pun intended!) infrequently. But when they do, the busy practitioner – who has not before encountered such a problem in their career – may be tempted simply to reach for the nearest expert witness directory and instruct the first probate genealogist they find. Equally, the legal practice to which they belong may have ‘always used’ a particular firm of researchers without ever considering the possibility of alternatives.

As with other areas of legal ?practice, this is a field in which choice ?of expert is all important. It is not ?(nor should it be) just a matter of ‘going through the motions’ and accepting any kind of a result, which is how an inexperienced practitioner may approach the selection and instruction of a genealogist. The primary consideration should always be to avoid unnecessary ‘estate problems’ or, at the very least, to mitigate such problems when they occur.

It is for this reason that the practitioner needs to approach the selection and instruction of genealogists with caution. To put it another way: all probate genealogists are not alike.

So what considerations should the busy practitioner have in mind? What should they demand of the forensic probate genealogist?

Expertise first

Qualifications, track record, accreditations, etc: they are all vitally important in the context of undertaking probate genealogical research assignments. Very often ?a forensic approach is required, finding connections between disparate pieces of evidence. A forensic genealogist will not only employ the genealogist’s traditional tools – birth, death, and marriage and military records, etc. ?They also use a bloodhound methodology, which could mean contacting the friends, colleagues, ?and even casual acquaintances of ?the deceased to identify and locate their heirs.

It is in the pursuit of this type of investigation that the skill and expertise of a probate genealogist will stand out from an average researcher.

Flexible costs

Broadly, there are two possible bases on which a probate genealogist might be commissioned. These are the ‘time-spent’ basis, with which legal practitioners will be wholly familiar, and the ‘finder’s fee’ (or contingency) basis. The time-spent basis may take the form of billing the client at an hourly rate, or it may involve working within a budget or fixed-fee. This is held out by certain firms of probate genealogists (who only offer their services on this basis), as being ‘the only way to go’. But is it?

Working on an hourly rate or fixed fee means that the research will have ?to be paid for irrespective of results, and the estate may pay a heavy fee even though no beneficiaries have been found. Perhaps in simple cases a fixed budget provides an attractive solution, but many cases are complex to resolve and they can involve a great deal of investigation to conclude.

As an alternative, the personal representative might prefer to agree to the genealogist being paid a fee from the share of the entitlement of each part of the family it traces. This protects the estate from buying research that does not yield results. No located beneficiaries means no fees. Even when beneficiaries are found, the cost may be less than would otherwise be the case on a ?time-charge basis.

This is certainly not to suggest that the time-charge basis is never to be recommended. Suffice to say, there will always be a number of considerations that need to be balanced, and that employing a probate genealogist who offers their services on only one basis might not enable the practitioner to demonstrate that they have properly fulfilled their duty to their client. It is important to remember that the personal representative must not incur unnecessary expenses.

Competitive quotes

Would you engage an insurer, architect, builder or engineer without obtaining a competitive quote? We all know the answer to that question. The same should apply when instructing genealogists. The personal representative has a duty to preserve, rather than waste, the assets of the estate. If they fail to do so, it is ?a potential devastavit, on the basis of which the personal representative might incur personal liability to the beneficiaries of the estate.

In other words, the decision made by the personal representative about the cost basis on which the genealogist proceeds may be highly relevant to fulfilling their obligations as the holder of that office. Thus, the practitioner should work with due diligence and carefully consider the options before commissioning any genealogical services. Rather than taking the line of least resistance by engaging the first probate genealogist they find, or automatically employing the same company time after time, investigate alternatives that may offer better value.

Professional duty

The bottom line is, of course, the expertise and practical help that the probate genealogist can bring to the practitioner in clearing up the difficult cases. There are various considerations that the practitioner should always bear in mind when sourcing and selecting. Each of these is potentially important to the legal representative in fulfilling their professional duty to the client.

Finally, being mindful of the practitioner’s overriding duty to the client and the estate, remember that ‘all genealogists are not alike’, so always seek a competitive estimate.

Sponsored comment by Anglia Research

Copyright & permissions