Will writing and estate administration – regulation on its way
The Legal Services Board (LSB) surprised us all on St. George’s Day with their announcement of their consultation on the terms upon which it will regulate Will writing and estate administration. You have until 16 July 2012 to respond to the consultation questions.
As St. George is famous for slaying the dragon so the LSB wishes to remove companies providing a poor consumer experience from this market. Their approach is likely to focus on the entity providing the services rather than relying predominantly on the qualifications of the individuals undertaking the work and/or supervising others undertaking the work. Apparently, there is a 60% chance of an independent will-writing company closing down within four years of opening.
The LSB has reviewed all the evidence about the problems suffered by some consumers. It also commissioned the Legal Services Consumer Panel research so that it could identify the risks to consumers and why they emerge.
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It is a sad indictment that solicitors were among those provider who were criticised as sloppy, producing documents containing simple errors such as mistakes in names and amounts and not communicating well with people. The Law Society submission contained many case histories provided by solicitors of the inadequate service given by other unregulated providers. The LSB found evidence of fraud, deception and unfair sales practices.
As far as probate applications were concerned errors in the completion of probate applications by professional service providers are common with an estimated one-third of applications being returned by the Probate Service! There was no strong evidence of wide technical errors causing detriment in estate administration but great evidence of consumers regularly experiencing poor service – lack of progress and failing to keep interested parties informed.
Where legal activities relating to powers of attorney and trusts are ancillary to the writing of the Will or the administration of an estate the LSB propose to capture these services within the scope of the reservation of activities.
However, the LSB wishes to maintain a diverse market and has made it clear that whilst its proposals will result in all providers who offer their services in expectation of a fee, gain or reward having to be regulated it does not envisage that only solicitors will be permitted to draft Wills, obtain probate and administer estates.
What does this mean for solicitors?
- Competition for Will writing and estate administration will continue but hopefully it will be fairer in that all providers will have to meet the same standards, albeit that these may not be the same as the Solicitors’ Code of Conduct 2011 and its associated rules and guidance. In other words, it will probably not result in a level playing field for solicitors but probably it will be more level than at present. The Law Society has already said that we should aspire to a level playing field and the features which the LSB has listed as part of its regulatory menu in its consultation document do look very similar to the approach of the SRA to Outcomes Focused Regulation.
- Reputable providers will be viewed by consumers as equally competent so solicitors will have to work hard at their communication skills to demonstrate why a prospective client should use their service instead of the Co-Op or a STEP member who is not a solicitor.
- Firms of solicitors will have to critically examine over the next 18 months or so the suitability and effectiveness of their Will writing, probate and estate administration services to be sure that they have:
- Managed risk in accordance with their compliance plan
- Improved the skills and competence of those operating their service in line with any guidance and regulatory framework arising out of the reservation of Will writing and estate administration activities
- Appropriate training
In the light of the criticism of Wills drafted by solicitors as well as non-regulated providers it is highly likely that relevant and appropriate training will be required in order to satisfy the LSB’s criteria.
Now is the time to identify any skill gaps in your team, tighten up your processes and procedures and focus on consumers’ needs as never before.
Contact me – I am here to help you manage this transition.
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