New plans to regulate Wills are overdue!
Guest blogger John Bunker of Thomas Eggar LLP looks at new proposals to regulate Wills, and why they are a step in the right direction.
Anyone can write a Will at present - no qualifications or experience are required. And it’s not just solicitors who are making Wills now; many others are joining in, including household names like the Co-op and AA
However other firms that have joined the WIlls party include many unregulated organisations that have no financial protection for consumer money or professional indemnity insurance.
New proposals for Wills regulation
On 23 April the Legal Services Board published proposals to regulate all Wills and administration of estates services. Currently, only the act of applying for a Grant of Probate is regulated as “a reserved activity”. A consultation period on the proposals will run until July, with several professional organisations already offering themselves as regulators.
The recent proposals are important for three reasons:
- Consumers need protection from organisations that would charge a lot and provide no protection – 85 firms (about 1.5% of the market) have no regulation at all. Many people are being taken advantage of by operators who take a lot of money and sometimes make promises they cannot possibly keep.
- The Legal Services Board Consumer Panel reported on Will writing in 2011, saying too many Wills written by both Will writers and solicitors were wrong, not reflecting what people intended and included basic errors. This was a wake up call for the legal profession who should not take Will writing for granted – it should only to be done by people who have the experience and expertise.
- Regulation might help the increasing number of disputes with Wills and help simplify disputes when they do arise. Problems with Wills are often not discovered until after death, when the family are grieving and dealing with the practicalities of managing the deceased’s affairs. There is no obligation on unregulated Will writers to keep and produce, on request, information and files about the deceased’s intentions and the circumstances in which the Will was made. It can also be difficult to trace unregulated Will writers years later. What's more, many have no insurance policy to protect the affected family.
The importance of Wills
Everyone ought to have a good Will.
Without a Will, the rules of intestacy can cause major problems, even in the most straightforward family. The uncertainty about what’s happening causes unnecessary headaches and heartaches. The appointment of the right people to administer the estate as executors, and look after any money as trustees, is critical and avoids uncertainty about who has the power to take action after someone dies. Disputes about personal possessions can be avoided with a good Will and guidance to executors.
There are also still good Inheritance Tax planning steps that can be taken through Wills, many situations where tax can be saved in the long run with good drafting from a specialist. Regulation of Will writing, to improve standards and the protection of the public is absolutely needed.
Don't wait for the rules
Don’t wait for new legislation, which will take many months, if you want to make a Will.
As a solicitor with 25 years' experience writing Wills, knowing the many complexities, I offer three tips for making Wills now.
- When taking advice, be very clear of your concerns and the issues you need to raise. You often don’t know what answers you want or even the options to consider. Ensure the choices are clear and your wishes are fully addressed – if not insist on changes or go elsewhere!
- Use a firm of solicitors that have members of STEP (Society of Trusts & Estates Practitioners) or a solicitor who belongs to the Law Society, Private Client Section, or Solicitors for the Elderly. These three organisations have done much to raise the standards of Wills and estates work.
- Don’t commit yourself to a specific service for administering the eventual estate – your executors should be free to choose the service that’s right, and agree the price, when the time comes.
A good Will and estates service can relieve burdens, give confidence and protect individuals and beneficiaries from harm. Let’s hope a regulatory system can help people get that service.
John Bunker is partner of Thomas Eggar LLP
What do you think? Should Wills be regulated? Let us know your views in the comment box below.