Private Client Terms of Business

The Firm of Neilsons Solicitors is a partnership, authorised and regulated by The Law Society of Scotland. We are registered with the Information Commissioner’s Office (ICO).

Our head office is at 138 St Johns Road, Edinburgh, EH12 8AY. Our Head Office contact number is 0131 316 4444 and our main email address for general correspondence is mail@neilsons.co.uk. Our website is www.neilsons.co.uk.

The Partners of the Firm are: Stephen Russell Spence, David John Douglas Marshall, Marjorie Townsend, Claire Corrieri and Kara Marriott. Our Operations Director is Jenna Spence, our Director of Property Services is David Easton, our Money Laundering Reporting Officer (MLRO) is David John Douglas Marshall, our Client Relations Partner is Stephen Russell Spence, and our Data Protection Officer is Suzie Johnstone.

Neilsons abide by the professional practice standards set forth in the Law Society of Scotland’s Standards of Conduct Practice Rules, which may be inspected by accessing the Law Society of Scotland’s website – www.lawscot.org.uk.

We will act strictly in accordance with your instructions – either written or verbal.

We will accept and act upon instructions from you or any authorised party by email. You will be bound legally by any such instructions and will be liable for all fees and outlays with flow from them.

Please be aware that the data transmitted via email is not encrypted. Emails and mobile phones can be insecure methods of communication, susceptible to interception, and emails themselves can be lost, altered, destroyed, delayed, or otherwise compromised. Neilsons implement extensive security measures to safeguard our IT systems, including virus screening for incoming and outgoing emails, and expect you to take similar precautions.

We are not liable for any losses or damages that may arise from using these communication channels. If you prefer not to use these methods, please inform us at the start of your transaction.

Exercise caution when receiving information about bank account details, and always confirm these directly through face-to-face meetings at our offices or by telephone: 0131 316 4444 (Corstorphine), 0131 556 5522 (Picardy Place), 0131 663 9988 (Bonnyrigg), or 0131 331 4009 (South Queensferry).

Be aware of the substantial risks of cyber fraud, particularly concerning email and bank details. Our bank account details will not change during a transaction, and any such changes will never be communicated via email. We disclaim responsibility for losses incurred if funds are transferred to an incorrect account.

Please note that emails to and from our IT systems may be monitored and recorded for business purposes and other lawful reasons.

When we are acting on behalf of a couple, particularly in a purchase or sale transaction, then unless you advise us to the contrary or unless it is clearly inappropriate in the circumstances, we will proceed on the basis that instructions from one party have the implied approval of the other. If that arrangement is not acceptable to you, you are asked to make that clear in writing at the earliest possible stage.

If we are given instructions by a limited company then unless otherwise agreed with you in advance, it is a condition of our accepting those instructions that we may accept instructions from one of the Directors and that all Directors are jointly and severally liable along with the company for payment of our fees and outlays and any interest thereon. It is a further condition of our accepting instructions that you agree to our instructing a company search to demonstrate that the company is in existence and that the statutory requirements of the company have been complied with. The expense of such a search will be payable by you.

You will also be required to produce to us on request a copy of the Memorandum and Articles of Association of the company.

We are always happy to provide reasonable adjustments to ensure that our services are accessible to all. Some examples of the reasonable adjustments we can make are:-

• Providing documents or correspondence in a larger font size
• Using telephone in preference to hard copy letters or emails where appropriate, to assist those with vision impairments
• Using plain English appropriate to the person we are dealing with, avoiding legal jargon
• Meeting with you in an accessible meeting space, to aid those who struggle with walking or use a wheelchair.

In order to carry out our services for you, we shall require your full assistance and co-operation throughout the duration of your transaction(s) with Neilsons Solicitors.

You are required to:

• Give instructions and information timeously when requested.
• Give us instructions and information either by email, telephone or fax.
• Advise us as soon as possible if your objectives or circumstances change, or if you receive new and relevant information in relation to your transaction(s).
• Be available to sign legal documents so that we can process your transaction, even at short notice.
• To review documents that we have prepared on your behalf to ensure accuracy of details there in and that they are in accordance with your instructions
• Advise us of any holiday plans in advance, so we can ensure that nothing critical is going to be missed.
• Remain in regular contact, particularly if critical dates are to be met e.g. dates of entry.
• Keep your Solicitor advised of any change of contact details, e.g. address, email address or telephone number.
• Comply with our compliance procedure as part of the Proceeds of Crime Act (2002), the Terrorism Act (2000) and the Anti-Money Laundering (2017) regulations we are bound by.

The firm has Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy. The current level of indemnity on the Master Policy is £5m per claim. The firm is also covered by the Scottish Solicitors’ Guarantee Fund which is established by Section 43 of the Solicitors (Scotland) Act 1980 for the purposes of making grants in order to compensate persons who, in the opinion of the Law Society of Scotland, suffer pecuniary loss by reason of dishonesty on the part of a Scottish solicitor in connection with the practice of that solicitor.

Advice given and documents prepared for you by us are for your sole use and benefit in relation to the matter on which we are advising you (and no other unrelated matters) and should not be passed to third parties without the prior written consent of a partner. In the event that such consent is given we will have no liability to any third party to whom the advice or documents are disclosed.

We have no responsibility for advising on the tax implications of any matter on which we are instructed. Where we instruct professional advisers or others on your behalf we do so as your agent and will not be responsible for the advice given or for any act or omission of those parties.

All copyright and other intellectual property rights in the documents produced by us during the course of work carried out on your behalf will remain our sole property and may be adapted or used for other clients without your consent.

Whilst it is often difficult to estimate precisely how long a task will take to complete, we will deal with your work as quickly and efficiently as possible. Please remember that the speed at which work can be completed can often be affected by the cooperation (or lack of it) we receive from people out-with our control.

We will provide you with a fixed price fee for the preparation of Wills and Powers of Attorney.

Unless a fixed fee arrangement has been agreed at the outset and confirmed as such in writing, fees for executries, trusts and other private client services are prepared on the basis of: – chargeable time spent in carrying out your instructions; giving advice; responsibility for the work undertaken and the timescale agreed for completion if appropriate. The hourly chargeable rates vary depending on experience and skill of our personnel handling your instructions; the nature and complexity of the work involved, including the importance of the work to you; the amount or value of the money or property involved; the difficulty or novelty of the issues addressed and the length, number or importance of documents or papers considered, all in accordance with the guidelines published by the Law Society of Scotland.

Where you are entering into a fee-charging agreement with us, the rates applicable to your instructions will be those specified in the undernoted schedule.

Disbursements and expenses, known as outlays, incurred by the Firm on your behalf will be added to our charges, including (but without limitation) registration dues, stamp duty, counsel’s fees, accountancy fees, audit fees, expert witness fees, travelling, accommodation or subsistence costs, courier charges, bank charges and other administration charges. We will assume that we have your authority to incur those expenses it would be reasonable to incur in the proper performance of the work you have instructed us to carry out unless otherwise notified by you in writing. We reserve the right to instruct searches against parties in executry and trust matters to ensure we have been fully diligent in executry or trust administration. The cost of searches will be payable by the estate or trust as appropriate.

We reserve the right at any time to request that you make a payment to account in respect of incurred or expected fees, outlays and expenses. Valued Added Tax will be charged at the applicable rate from time to time on all fees and on those outlays and expenses that bear it.

Where we give an estimate of fees it will be a probable fee based on our experience of the work you have asked us to do. If the work turns out to be more complicated or takes longer than anticipated, we may be required to increase our estimate to take account of this and will endeavour to inform you about such increase as soon as possible.

We may render a fee or an invoice for outlays or expenses, generally in advance in relation to the preparation of a Will or Power of Attorney, or on conclusion of a matter or on an interim basis at our discretion. Payment is due within fourteen days of presentation of the fee note or invoice and in the event that payment is not made within 30 days of the date of presentation we reserve the right to charge interest on any outstanding balance at the rate of 2% above the base rate of The Royal Bank of Scotland plc from time to time. In addition, we also reserve the right to suspend the provision of services until such time as payment has been made in full.

Please note that, unless otherwise agreed in writing, you are responsible for payment of our fees even if a matter does not proceed to completion, we have agreed to invoice a third party, you are insured or someone else has agreed to pay your expenses.

Where we receive sums which will ultimately belong to you we shall be entitled to deduct from those sums all outstanding fees, outlays and expenses before remitting the balance to you. All monies belonging to you which are not required for fees, disbursements and expenses will be either held by us in accordance with the provisions of the Solicitors (Scotland) Accounts Rules or will on your direction be remitted to you.

Where we act on your behalf in connection with a Private Client Matter, we seek to charge a fair and reasonable fee for all work carried out. Fees will be charged according to circumstances but the basic charge outwith a fixed fee arrangements will be for time engaged, in units of 6 minutes at the appropriate hourly rate (subject to review from time to time) shown in the issued Fee Charging Schedule.

Our fees for trust and executry business are assessed on what is known as a “time and line” basis. This means that we charge for both the time taken to administer an estate (meetings, telephone attendances, visits, travel etc.) and the documentation generated (statutory inventory, letters, deeds, accounts etc.) our hourly charging rate is £250.00 subject to review in January of each year and you will be advised of any change to this. The minimum amount of time charged for is six minutes which equates to £25.00. In addition, the firm charges “responsibility” (commission) of between 0.40% and 0.50% for the ingathering and stewardship of the estate funds. VAT at 20% is payable on our fees. There is a 5% post and incidents charge applied to our legal fee.

As an alternative to the foregoing, by negotiation and joint agreement in advance we are entitled to charge a commission- based on the value of the estate for Confirmation and any other assets realised by us.

From time to time, it may be appropriate for us to give fixed fee quotations for executry business as each estate is administered according to its own facts and circumstances which can vary significantly from case to case. However, to ensure that our fees are scrupulously fair we reserve the right to have our correspondence files independently “taxed” (assessed) by the Auditor of the Sheriff Court who is an official authorised to determine solicitors’ remuneration in a way that the court would consider fair and reasonable in all the circumstances. The Auditor’s fee plus VAT are payable by the Estate.

The Auditor’s assessment is binding on both solicitor and client under a joint remit (sent to the executor(s) for signature prior to completion of the estate) although if the executor(s) is/are dissatisfied with the assessment they may request a “diet of taxation” (formal hearing) or appeal to the Auditor of the Court of Session, Parliament House, 2 Parliament Square, Edinburgh, EH1 1RQ (0131-220-0137).

Please also note that with even a modest or straightforward estate costs can escalate if not kept in check. Telephone calls, meetings or email exchanges that are not essential should, therefore, be avoided if possible.

We reserve the right to raise an interim fee to cover all work carried out to date in cases where Confirmation (Known in England as Probate) has been granted and the funds ingathered exceed £1,000. All fees will be intimated to you for approval prior to debiting from the estate.

In cases where there is heritable estate (land and buildings) to be administered a separate fee quotation shall be made available on request in respect of:

Marketing and pre-sale formalities (Estate Agency).

Conveyancing (the legal process of transferring property).

VAT.

Outlays (legal searches etc).

Any other documentation that may be needed to provide a title that is acceptable to the purchaser.

Property Sales

If there is a property to be sold please note that it is not legally possible to transfer heritable estate to a purchaser unless Confirmation has been granted in favour of the executors beforehand. As such we advise against marketing of any executry heritable property until after completion of the Confirmation process.

We will normally render an invoice for fees and any outlays due on a quarterly basis or when the amount outstanding exceeds £1,000. In respect of Executry administration, it is our practice to issue an interim Fee on application for Confirmation being submitted and at regular intervals thereafter based on the work completed.

Independent Fee Assessment

Other than in the case of an agreed fixed rate of commission, it is our policy to have our files audited by an independent Law Accountant, this ensures that a fair and reasonable fee is charged by our firm for hourly rate matters. The audit fee will be charged as an outlay for the work undertaken and will be detailed within your Note of Fee at the end of the transaction. Should you at any time be dissatisfied with the amount of a fee charged by us, then you are entitled to request that our files be submitted for taxation to another Law Accountant with suitable experience of the work involved. In such cases, both sides are bound by the fee as fixed by the Auditor. If the Auditor reduces the amount of our original fee, we will only charge that reduced amount and we will pay the audit costs. If they confirm that our fee is correct or undercharged then you will be responsible for the audit costs and any additional costs.

Buildings insurance on any executry property should be in place throughout the administration of the estate. The property must be insured to the full reinstatement value and it is important that the Insurers are notified that the property is unoccupied, if appropriate to ensure full cover is maintained. This is the responsibility of the Executor.

To meet our statutory requirements under the Proceeds of Crime Act (2002), the Terrorism Act (2000) the Anti-Money Laundering Regulations (2017), we are required to confirm our client’s identity and that of directors, partners, trustees, controllers of companies or firms and all of the connected shareholders. This will involve passing certain personal details (i.e. name, address and date of birth) to an external organisation (Amiqus – a Law Society of Scotland endorsed organisation) specialising in identity verification. Amiqus will use the personal details provided for the purposes of verifying identity only and will retain such information in order to show that a search of identity has been undertaken on the Firm’s behalf. The undertaking of such a search will not affect the credit history of the individual searched against and the external organisation will not use the personal details provided for any other purpose.

For all transactions we require to have on file evidence of who you are (a valid, in-date photographic passport or driving licence and where you live (according to Law Society of Scotland regulations this must be a utility bill, Council Tax Demand, mortgage or bank statement in the name of the client(s) dated within the last three months). Please note a driving licence is not acceptable as proof of address as it is not dated within the last three months however it can be used as proof of identity.

When this identity check is processed with Amiqus, it will enable you to submit your documents securely online at the start of your transaction. If you do not wish to do this, you can of course bring the original documents into one of our offices and a member of staff will photocopy your documents, verify who you are and upload them to Amiqus.

If we do not receive satisfactory evidence of your identity, we will not be able to act as your Solicitors.

If you fail to provide the necessary documentation, your transaction may be held up as we cannot proceed unless we have this documentation in order as we have to adhere to the applicable laws and regulation.

Regarding your compulsory anti-money laundering purchase check, if the time spent on the matter exceeds the reasonable time limit of 1 hour, then you will be charged an additional fee of £50 + VAT per hour. The fees quoted on your budgetplanner or fee quotation, take into consideration a reasonable Anti-Money Laundering check of up to one hour, but if we have to invest more time and resource into your compliance check we will discuss this with you and charge you appropriately.

Your compliance documentation will be held securely on the system for as long as required to meet our legal and statutory requirements and thereafter will be securely destroyed. This is in line with the Law Society and ICO guidance.

In accordance with the Solicitors Accounts rules, all money we hold for clients in maintained in a separate designated client account. We bank with Virgin Money (formerly Clydesdale Bank), however, if you would prefer to have your funds held in a different Bank or other major financial institution or institutions, please notify us by letter at any time and we will endeavour to comply with your request.

On occasions, we may carry out Incidental Financial Business for you as an ancillary part of our main professional services (such as arranging an insurance policy such as a Title Indemnity Policy, a Bond of Caution in an executry, selling shares in an executry, or referring you to a trusted Independent Financial Advisor, Mortgage Broker or Insurance Provider).

Our firm is licensed by the Law Society of Scotland to carry on Incidental Financial Business under the Society’s Practice Rules. We are not authorised by the Financial Conduct Authority (FCA) under the Financial Services and Markets Act 2000.

The Incidental Financial Business activities we provide are limited in scope. For example, where investment advice is needed, it will be obtained from a firm of stockbrokers or other authorised third party, and we will not comment on their advice. We are also covered by the Professional Indemnity Insurance under the Law Society of Scotland’s Master Policy and the Scottish Solicitors’ Guarantee Fund.

Whilst it is not standard practice for us to obtain remuneration for us to make such arrangements on your behalf, any pecuniary reward or commission received by the firm from third parties due to the conduct of IFB will be accounted for, and may be offset against our fees with your agreement, or paid to you.

The law allows creditors a period of six months to lodge their claims against a deceased’s estate. This being the case it would be imprudent to finalise an executry in advance of this period. In the meantime, however, we are able to make interim payments (if requested) to beneficiaries once the estate is in funds and debts settled. Occasionally with larger estates it may take longer to finalise an executry especially in cases where there is a property to be sold or complex tax or accounting issues. In this event we shall advise you of the situation and update you of progress. As a general guide the minimum time for processing an executry estate is 6 months with the majority concluding within 6-12 months. For the avoidance of doubt the monetary value of the estate does not dictate its complexity to administer.

Following completion of the executry, and payment to the beneficiaries, the contractual arrangement created hereunder will come to an end. Should, at some later date, an additional matter arise necessitating the “reopening” of the estate then separate terms will apply.

Payments to beneficiaries under a will or intestacy can only be made in sterling by cheque or electronic transfer into a designated bank account (in which case a charge will be made for this). We do not make payments to beneficiaries in cash. We require all beneficiaries to provide appropriate identification.

Information of a confidential nature concerning you will be kept strictly confidential. However, if we are working on a matter in conjunction with your other advisors we will assume, unless you notify us to the contrary, that we may disclose any such information to and discuss it with such advisors as appropriate in order to provide you with a service. We have a legitimate interest in passing your data in some circumstances on to certain third parties such as Surveyors or the Registers of Scotland in order to ensure your transaction runs smoothly. In executry cases we are unable to correspond with any other party than the executor or their advisors unless otherwise authorised in writing.

The right to reply: In the unlikely event that you consider it necessary to criticise our handling of a transaction on a public forum such as social media, we shall be entitled to assume that you have authorised us to respond to any comments we consider to be unjustified in the same public forum notwithstanding the fact that this may otherwise be regarded as a breach of our duty of confidentiality.

It is hoped, however, that any issues can be resolved privately and not in a public forum.

Almost any legal transaction whether of a private or business nature can affect the amount of tax or other government duties which you may have to pay in either the short or long term. However, we will not give tax advice unless otherwise agreed in writing. Consequently, unless agreed in writing, we shall not be responsible for any failure to offer tax advice or any incorrect opinion passed on a tax matter. Accordingly, if you wish to obtain a formal opinion on a tax matter then unless we have specifically agreed to provide this ourselves you should seek advice from a specialist tax accountant.

Where you are introduced to us as clients by another firm of Solicitors, we may rebate a proportion of the fee we charge you to that Firm in the form of Agency commission.

We are committed to providing a high quality service. If you have any concerns, however, as to the manner in which the transaction is being, or was, handled or the fee that has been charged your complaint should, in the first instance, be directed to the partner responsible for the matter. Thereafter if you are not satisfied our Client Relations Partner, Steve Spence, who is based at our Head Office at 138 St John’s Road, Edinburgh, EH12 8AY. Contact telephone number: 0131 316 4444. We will ensure that any complaint is properly and objectively investigated and dealt with and that you are fully advised of all your rights. Should you wish to find out more about our complaints procedure please read our privacy policy which is available at www.neilsons.co.uk/privacy.

If after investigation by the Client Relations Partner you are still not satisfied, you are at liberty to refer the matter to The Scottish Legal Complaints Commission (SLCC) who are the single gateway for all legal complaints in Scotland. Visit the SLCC website: https://www.scottishlegalcomplaints.org.uk/.

The SLCC can be contacted at the following address and you can make a complaint online here: https://www.scottishlegalcomplaints.org.uk/contact-us/

Scottish Legal Complaints Commission
The Stamp Office
Capital Building

12-13 St Andrew Square
EDINBURGH
EH2 2AF

Phone:
0131 201 2130

Fax:
0131 201 2131

Email:
enquiries@scottishlegalcomplaints.org.uk

If you are not happy with our response to a complaint made about your personal data, you are also entitled to submit a complaint to the Information Commissioner’s Office (ICO).

Tel: 0303 123 1115.
Website: https://ico.org.uk/global/contact-us/

We expect to continue to act on any matter on which we have accepted instructions until the matter is completed, unless either of us bring those instructions to an end earlier. We will not normally withdraw from acting unless a conflict of interest arises or we consider that it would not be in your best interests for this Firm to continue to represent you, for example if there was a breakdown in the essential element of trust and confidence between us. If instructions are terminated you will only be liable for the payment of our fees to the date of termination of the instructions together with any fees or payments for work necessary in connection with the transfer of the matter to another advisor of your choice. We will be entitled to retain all files, documents and other papers held by us on your behalf until all outstanding fees and outlays have been paid in full.

In cases where you have instructed us to assist in the administration of an estate where the deceased did not have a will (intestate) and you have obtained a Bond of Caution. We are unable to withdraw from acting unless expressly permitted by the Insurance Company (Cautioner).

We will assume that you are happy to receive communication by email, telephone or fax.

We will be happy to accept and act on instructions from you or any duly authorised party by e-mail except bank details. You will be bound legally by any such instructions and will be liable for all fees and outlays which flow from them. Bank details must always be verified over the telephone or in person to avoid the risk of email interception or hacking, see point 25 below.

If your contact details change, you must inform us immediately in writing.

It should be noted that the internet is not a secure environment and may be open to abuse and accordingly we will not be liable to you for any losses suffered by you in any way as a result of our communicating with you or anyone purporting to be you by e-mail.

We must point out to you that there is a very high risk posed by cyber fraud, specifically affecting email accounts and bank account details. Email are always at high risk of interception and hacking. Cyber criminals are in particular known to target e-mails to and from Solicitors’ firms in the UK in a cynical attempt to divert funds to criminal accounts.

Our bank account details are available on request by telephone or in person.

Our bank details will never change during the course of a transaction. We suggest that you make a test payment of £1 which our Cash Room Department can confirm has reached our account safely before you transfer large sums of money to us electrically in connection with your transaction.

Neilsons will not accept responsibility or liability if you transfer funds to the wrong account.

If you are in any doubt or if you receive any apparent new bank details from us by email then this will almost certainly be a scam and you should check our account details with us over the phone at one of our registered numbers or in person.

We cannot accept bank details via email. We will only accept notification of a change of your bank details by letter or in person and with additional documentation or confirmation being provided.

We will never treat a client differently because of any characteristics defined in the Equality Act (2010). We are under a duty to make reasonable adjustments for clients with a disability. Should you require us to make our policies or meetings more accessible, notify us and adjustments can be made.

As part of Neilsons’ commitment to the the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018, we are transparent and fair in how we collect and store personal data from clients and users of our website. You can find our privacy policy on our website here: www.neilsons.co.uk/privacy which details how we use your personal data, what our lawful basis for storing your data is and the rights which you have as an individual. This privacy policy is layered so you can select specific sections of the privacy policy that are relevant to you. Should you wish to receive a printed privacy policy or have any questions relating to this policy, please ask.

These Terms of Business are of contractual effect and should be read carefully. If you are in any way unsure as to the nature and effect of the Terms of Business please notify us immediately and we will be happy to provide clarification.

Our Terms of Business are under regular review.