27 September 2012
LSB: regulating will-writing and estate work will grow market and benefit solicitors
Wills: new regime unlikely to start before 2015
The reservation of will-writing and estate administration should boost the amount of work and allow existing providers such as solicitors to become more competitive, the Legal Services Board (LSB) said today as it laid out how the regime will work.
However, it is unlikely to start before 2015 given the time needed for implementation.
Following its recommendations in April to bring will-writing and estate administration into regulation, the LSB today reported widespread support from consultees. It has launched a final, six-week consultation on the detail of the formal recommendation it is to make in February to the Lord Chancellor, who will be responsible for introducing reservation.
“The guarantee of minimum safeguards will increase consumer confidence, with a greater number of purchases being the logical result,” the LSB said. “This in turn will grow the market. The liberalising effects of more risk-focused regulation will allow existing regulated legal services providers greater room to innovate and become more competitive, which in turn brings the benefits back to consumers.”
The LSB is to recommend reserving will-writing and ancillary legal activities, such as taking instructions and obtaining background information; drafting the will and making subsequent amendments; providing advice relating to the preparation of a will and subsequent amendments, for example, advice about tax, wealth management or the legal instruments available to give effect to the consumer’s wishes; and advising on and overseeing the execution of a will.
The other recommendation will be to reserve the administration of an estate of a deceased person and legal activities provided ancillary to the administration of an estate.
“We do not intend for the proposed reservation of will-writing to bring service providers that do not write wills within the scope of legal services regulation,” the LSB said. “Similarly, we do not intend for the proposed estate administration reserved activity to bring within legal services regulation service providers that do not collect, realise and distribute estate assets.”
This means that, for example, no reserved activity will be performed where a consumer obtains advice about how to limit inheritance tax after their death but the provider does not write or outsource the writing of the will to give effect to the advice. Where consumers use a DIY will pack, it will fall outside the proposed reservations unless there is a checking service included.
Similarly, where a consumer obtains help completing the estate accounts once an estate has been administered, but the provider does not collect, realise or distribute estate assets or prepare the papers upon to which to found the authority to do so, this service would fall outside the scope of the new reservation.
Advising an executor on legal issues related to the administration of an estate would also not be considered a reserved activity.
The LSB rejected “considerable pressure” from solicitors to reserve powers of attorney and setting up and administering trusts: “The arguments to reserve these activities were not supported by convincing evidence of consumer detriment.”
The LSB said reservation should take effect only when there is at least one approved regulator and licensing authority that can regulate the different providers currently active within the markets, and “providers are authorised in sufficient numbers to ensure that access to justice, consumer choice and competition is maintained”.
“We estimate that it may take at least two years from the time that any recommendation is made to the Lord Chancellor for these criteria to be met,” the LSB said.
As well as any new regulators, existing regulators will have to apply for specific designation to oversee will-writing and estate administration – the Solicitors Regulation Authority, ILEX Professional Standards, Council for Licensed Conveyancers and Institute of Professional Willwriters have all expressed a wish to regulate will-writers.
LSB chairman David Edmonds said: “The support shown, the research we have done and evidence provided, confirms our view that we should recommend that will-writing and estate administration activities should be reserved, predominantly on consumer protection grounds. Lives can be seriously damaged by incompetence or misdemeanour in drafting a will or administering an estate.”
By Legal Futures
Tags: Council for Licensed Conveyancers, estate administration, ILEX Professional Standards, Institute of Professional Will-writers, reserved legal activities, Solicitors Regulation Authority, will-writing
Leave a comment