What are the risks of using unregulated ‘Will writers’ and ‘Probate Practitioners’?
Released On 11th Oct 2022
The Law Society Gazette recently published an article calling on the Solicitors Regulation Authority to publicise the risks of unregulated and uninsured advisors to protect the public. The focus of this article was on the industry of unregulated 'Will writers' and 'Probate Practitioners'. Senior Associate Private Client Solicitor Christine Butterfield looks at the issues.
I often do talks to local community groups on why they should make a Will and they are usually horrified to hear that any one of them could advertise in the local papers as a 'Will writer' the very next day, with no qualifications and no insurance and legally write Wills. There is an assumption that this industry must be regulated, but it isn't.
Unlike a solicitor, an unregulated Will writer has no legal duty to act in the client’s best interests, so it is possible that the client will end up with a more complicated Will than they need, involving Trusts for example, as this is a more expensive ‘product’ to sell. If a Will writer has made a mistake, there is seldom any recourse for the client or their family, as they are likely to be operating as a limited company and unlike solicitors, are not legally obliged to have any insurance to pay out any claims. A mistake in a Will is also more likely to lead to claims against the estate or that the Will is invalid.
Will writing companies often promote schemes which put a client’s property into a Trust during their lifetime, based on the claim that such a move could save inheritance tax and care home fee and with the suggestion that it will make it easier for their estate to be dealt with after their death. The latter point is rarely the case and as a solicitor I have been involved in ‘unravelling’ a number of these unnecessary Trusts during a client’s lifetime, or sometimes for the family after their death. It has led to increased legal fees and often delays in selling the client’s property. The best advice for that client at the time would probably have been to leave their house as it was and to just have a straightforward Will in place. By placing a property into a Trust during your lifetime, fails to take it out of your estate for inheritance tax purposes, as you have ‘reserved a benefit in it’ by continuing to live in it. Any Local Authority are likely to argue that the gift into the Trust contravened the rules on ‘deliberately depriving yourself of assets’ so will still include it in your estate for a care home fee financial assessment.
I would encourage clients to always consult a solicitor when considering amending their Will or setting up a Trust.
