Solicitor slow over probate

sdooley

localhero, I assumed by 'Double Deed of variation' they meant a single deed which was entered into by the executors of both estates in their seperate capacities, but if they meant two variations of the same estate you are quite correct that this would be invalid (well the second one would be) for IHT purposes. As you say accountants/IFAs are good so far as they go but I don't understand why they are dealing with probates itself (as opposed to the accountancy or investment advice).

maggie, I did have a quite dreadful thought that your father's will may have included a '2 year discretionary trust' which was exercised in your mother's favour (which would explain your original solicitor's view that a deed of variation is no longer possible). But I was glad to see that your Dad's will left everything to mum.

Make sure you have the variation papers ready in the next month - there is no excuse for this to take longer - you can then question them and get assured that they are right before signing them as one wrong thing in a variation (e.g. a missing signature) can mess up the whole thing - and as localhero says you only get one bite at the cherry.

sdooley

sloughflint wrote: »

And if solicitors are the most common form of will-writers then SRA should be doing something to ensure that this is so.

Most common will-writers are Messrs WH Smith & Co.

Actually no, they are beaten to that by Messrs Will Getround Toit Later.

sloughflint

sdooley wrote: »

Most common will-writers are Messrs WH Smith & Co.

Actually no, they are beaten to that by Messrs Will Getround Toit Later.

I can't believe that you can joke about such a serious subject where unsuspecting people are trusting professionals with dreadful consequences.

sdooley

It's not just a joke though is it - far more people go to WH Smith for a Will Pack than get any form of professional advice and even more people don't do a will even though they should.

p.s. If you look at the rest of the board, it's full of banter, even on the most dreadful topics like bankruptcy and divorce.

sloughflint

sdooley wrote: »

It's not just a joke though is it - far more people go to WH Smith for a Will Pack than get any form of professional advice and even more people don't do a will even though they should.

p.s. If you look at the rest of the board, it's full of banter, even on the most dreadful topics like bankruptcy and divorce.

It's far from a joke and I have commented about that sad situation elsewhere but you are detracting from the main and equally very worrying point of the thread.

I take it you are a solicitor. Why do you think SRA are not taking the matter seriously with solicitors like the IPW seems to be trying to be about the rogue will-writing companies?

sdooley

The SRA does take rogue will-writers very seriously. Where there is any pretext for them to act, as with the recent case where the word solicitor was used in the firm's name, they will close down operators - which the IPW cannot do. Likewise any rogue solicitors will be closed down (intervened in) on suspicion (not proof) of poor practice. The SRA has no legal power to intervene in unregulated areas.

The IPW is a competitor to the Law Society - a membership organisation. Obviously it does very well in talking up its position (as do the Council of Licensed Conveyancers). But it does not have the power to close down unregulated willwriters (query whether it has the power to close down its own members though it may soon hopefully) and neither does the SRA. Both the Law Society and the IPW would like further regulation, but the Government believe there should be greater competition and lower cost in the market. There is also a technical problem with regulating willwriting in that a member of a family who helps draft a will based on a willpack for another member in exchange for Sunday lunch should not be prosecuted - although I'm sure a sensible carve-out could be inserted in the legislation.

The IPW is a great organisation but it has not historically had the statutory powers to investigate its members, let alone regulate the wider use of the term willwriter. The Society of Willwriters is a competitor body to it and they have different set of exams. How are people supposed to choose between them? It is perfectly possible that a member of either body could be out of date or inept in their application of the law - you are unlikely to hear about this yet in the case of the IPW as it has so few members.

I come to this site to help people in a light-hearted way. I know that you have had troubles in the past in this area and I'm sorry for that. My joke made a relevant point. More heartache is caused by the absence of advice than incorrect advice - you just need to look at the recorded cases.

The safer alternative is the Notary Public system on the continent - it is also much more expensive - you will be charged a percentage of the estate for drafting the will. There will always be a trade-off between encouraging people to work in an industry, ensuring there is sufficient regulation and keeping the price reasonable to the customer.

localhero

sdooley wrote:

Willwriters are great and a helpful way forward but with only 2 in Greater Manchester they aren't yet the answer to everyone's problems (and I haven't seen any evidence they are fraud-free, although the training and PI cover is obviously a good thing).

All members of the IPW are subjected to regular enhanced CRB checks and upon applying to join. Sadly there are not enough Willwriters that bother to join up and submit themselves to the high standards of ethics and professionalism demanded by the IPW.

sdooley wrote:

localhero, I assumed by 'Double Deed of variation' they meant a single deed which was entered into by the executors of both estates in their seperate capacities, but if they meant two variations of the same estate you are quite correct that this would be invalid (well the second one would be) for IHT purposes

It is possible the IFA might have meant a double death variation, in which case it would make sense.

sdooley wrote:

localhero, you are raising my (already quite high) view of the Institute of Willwriters with your erudite and broadly accurate posts.

I'm pleased to hear it. I hope you and others find my posts informative and helpful.

sdooley wrote:

I am unsure that a Deed of Variation and an 'instrument of variation' are the same thing for tax purposes. If you can't show consideration, an instrument which is not by deed (or being even more arcane an instrument which is not a contract under seal) is revocable (can be cancelled). Would a variation still be accepted by HMRC for IHT and CGT purposes (depending on the relevant sections being claimed) even if it is not by deed?

Yes HMRC would accept either. S.142 Inheritance Tax Act States: "that a Will can only be: "varied/altered or the benefits disclaimed, by an instrument in writing made by the original beneficiary(ies)"

sdooley wrote:

And only solicitors can prepare Deeds? Is that still the law - must be going soon with all the reviews going on in the field. Very anti-competitive.

I agree - but it is an offence under S.22 of the Solicitors Act 1974 for anybody other than a solicitor to draw up a deed for a fee.

sdooley wrote:

Still not sure about the tone of your signature but I'll let that pass! (All solicitors have to study equity and trusts in their academic education and probate in their Legal Practice Course, and anyone working in the field of probate is required to undertake further relevant training).

I'm afraid equity and trusts during the law degree (or CPE/PGDL) in no way prepares practitioners for drawing up wills or dealing with probate.

Unless other providers differ to the College of Law, probate is only touched on in the pervasive element, but there is no compulsory exam in it. There is an elective available called 'private client: wills, trusts and estate planning' which obviously does have an exam, but it is not compulsory to study this elective - and whilst a great elective, in any case it only covers the basics of Wills.

So I stand by the accuracy of my signature. There is no compulsory exam in willwriting that solicitors or Willwriters must pass other than that undertaken by IPW members.

sloughflint

sdooley wrote: »

The SRA does take rogue will-writers very seriously.

Your post was interesting but I am specifically interested in why the SRA are not enforcing suitable qualifications on solicitors ( not the rogue will-writing companies or rogue solicitors). I mentioned this aspect in an earlier post.

sloughflint

sdooley wrote: »

More heartache is caused by the absence of advice than incorrect advice - you just need to look at the recorded cases.

I just come back to what I said in an earlier post that there are probably many unrecorded cases. How many people know that they are being incorrectly advised?
After previous bad experiences,I researched extensively only to find that I was being given incorrect facts by a solicitor.That should not be happening.Ordinarily I would have put my complete trust in the solicitor and been blissfully unaware.

How many clients if they do realise, go as far as getting the 'incorrect advice' logged externally creating a record?

localhero

sdooley wrote:

The IPW is a competitor to the Law Society - a membership organisation. Obviously it does very well in talking up its position (as do the Council of Licensed Conveyancers). But it does not have the power to close down unregulated willwriters (query whether it has the power to close down its own members though it may soon hopefully)

That's inaccurate. The IPW has always had a strict code of conduct, and any member in contravention of that is subject to disciplinary proceedings or expulsion. (Hence the relatively low take up by willwriters generally - though the membership is growing - currently 250 full members).

The IPW have long campaigned for all Willwriters to be properly regulated, but it is not compulsory for all willwriters to subject themselves to the rigorous standards imposed by the IPW - so unfortunately the public have little protection from the rogue elements that are allowed to operate outside of the IPW.

sdooley wrote:

It is perfectly possible that a member of either body could be out of date or inept in their application of the law

There is compulsory ongoing training as well as an excellent online resource where more experienced members share their expertise with newer members - so I would say that is unlikely with an IPW member.

sdooley wrote:

The IPW is a great organisation but it has not historically had the statutory powers to investigate its members, let alone regulate the wider use of the term willwriter.

The membership rules are clear and so is the OFT approved (stage 1) Code of Practice that all members have signed up to. No statutory powers are needed. The Consumer has protection for wills and estate administration work undertaken by IPW members under the Consumer Codes Approval Scheme. The key features are:

• Members are required to pass an entrance exam and complete ongoing training to maintain their professional knowledge
• Members will provide consumers with details of all their fees in advance
• Members will provide consumers with a minimum seven days cooling off period
• Members will complete work within strict time frames, as agreed with the client
• consumer prepayments and deposits will be protected in the event that a member is unable to provide the promised service
• a low cost, independent redress scheme will be available
• Monitoring procedures including compliance visits and customer satisfaction surveys will be undertaken.

I think it's fair to say that the SRA or other rival organisations are not protecting the consumer in the same way.

I'm pleased you are contributing to a healthy debate sdooley, but I think I agree with sloughflint here - and that is the SRA are badly letting down the public in allowing solicitors like the OP's and countless others we hear about on this forum charge lots of money to draw up Wills that are not fit for purpose and engage in estate administration when they clearly haven't got the ability, let alone the ethics to do so.

Then there are the unregulated willwriters that are free to cause chaos and mayhem that give the professional, ethical and competent Willwriters a bad name or allow solicitors to be the default choice for Wills or estate administration work.

Let's not forget, the cases we hear about are just the tip of the iceberg. Until the SRA or for that matter the government act decisively nothing is likely to change.