I did think you had received a quote from “Title Research” this took me by surprise as it indicated that you were offered a percentage based fee that goes against what they have been preaching for a number of years.
However, on re-reading I see you used title research to describe the industry rather than the firm.
Your initial question I am afraid is a bit of a hornet’s nest that has caused many disagreements. I have a detailed opinion obtained from Christopher Nugee QC that has looked at these very questions.
The main points are covered by: Sprye v Porter (1856) 7 E&B58 and Rees V de Bernardy (1896) 2 Ch437 and Wedgerfield v de Bernardy (1908) 24 TLR 497 (Parker J), 25 TLR 21 (CA) that looks at the principle, whether a genealogist can charge an heir for providing information relating to an estate that they may be unaware. In all 3 of these cases the court ruled in favour of the ability to charge, and to my knowledge this has not been questioned again.
The argument between an hourly time spent way of charging, and a percentage based method is very dependent on the size of the estate. At times an hourly charge would be totally inappropriate as it could consume majority of a relatively small estate and vice versa on larger estates. Before the search is exhausted, there are greater chances, that an administrator is tempted to call an end to research compared to when using a percentage model that is virtually a fixed fee, and in the genealogists interest to pull out all the stops to locate all the heirs. There is however the problem that if a percentage method fails then as an administrator you may be required to pay by the hour to obtain the report which identifies heirs who wouldn’t sign with a genealogist.
The main point here though is that the executor/administrator has a duty to ascertain who the beneficiaries are [Re Gibbons’ Will (1887) 36 Ch D 486] and to do this they are entitled to engage and pay a genealogist to assist with this work. I have not come across any argument in relation to that and whether it should be as a time spent or a percentage makes no difference providing the costs are reasonable. But who should pay and when can distribution be made? It was the opinion of Mr Nugee and I quote “I can readily see the justice of throwing the cost of ascertaining the beneficiaries entitled to share on to the share in question”, this is similar to the commission agreed with an estate agent for selling a property forming part of an estate. One would never question whether an estate agent can charge a fee for selling a property, but that fee forms part of the money received from selling that one property, not from all the properties that may form the estate or from the estate as a whole.
This leads us on to asking the question: when should a distribution take place? This is a question that I am afraid requires some more information, with regard to the missing heirs. If those missing heirs determine how much the other heirs are entitled to, then it would be unwise to start an early distribution, if on the other hand there is a determinable share due to the missing heirs then you are perfectly able to commence the distribution to the others and just hold back the share due to the missing heirs. If dealing with a Will, then the whole process may be out of your hands as one would have to follow the legal context where the heirs were mentioned. However, we would need to further look at this argument, a good genealogist and certainly my firm would expect to be able to report back to an instructing party within a week of getting instruction, and requesting heirs to wait for one week should not be a concern in a well-managed estate.
For further information I would be happy to talk to you about this or any other case.
Fraser and Fraser