Can ABSs spark a revolution in wills and probate services?

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By Legal Futures

30 September 2010


Daniel Curran looks at how alternative business structures could improve the offering in the wills and probate market, and where probate genealogists fit in with the mix

Wills and probate: an area where the benefits of the ongoing reform of legal services regulation should be most keenly felt

If we are to believe the hype, the Legal Services Act is about to see the opening up of new business models in the provision of legal services, intended to ensure consumers can access services of even better value and quality.

Uptake of the new business models by barristers and solicitors looks set to be positive, with a recent YouGov survey conducted on behalf of the Bar Standards Board indicating that more than a third of barristers are likely to join a new business structure in the next five years. A similar scale of ambition is being expressed by solicitors. Change is clearly afoot.

Consumer benefits

Wills and probate is the one area of law which nearly every member of the public is likely to come into contact with in their lifetime, whether writing a will, or as a beneficiary, executor or other interested party.

And, on the face of it, this should be one area where the benefits of the ongoing reform of legal services regulation should be most keenly and most beneficially felt by consumers.

Recent years have seen a clear growth of interest in tracing one’s family history, such as through popular television programmes. However, growing interest in inheritance and tracing heirs is more than just a casual past-time, with professional probate genealogists providing important services which underpin the work of solicitors. They specialise in identifying and tracing heirs, locate people who may be beneficiaries under a will or the intestacy rules, and as well as solicitors, are frequently instructed by executors or administrators and trustees, or may act directly for the beneficiaries.

The challenge now is to see how best these services can be integrated into a broader offer to the public that combines will-writing with probate services and executor support, and the associated areas of law such as trusts and inheritance tax liabilities.

Indeed, alternative business structures (ABSs), as consumer-facing businesses, are ideally suited to the provision of wills and probate services. Professional probate genealogists, such as ourselves, need to rise to the challenge of dovetailing their specialist expertise with an ABS’s offer to provide a comprehensive, streamlined wills and probate service for consumers, encompassing core services such as missing heir location, tracing next of kin, missing wills services, missing document services and estate distribution.

Range of services

There are already major providers in the market who are providing the sort of one-stop shop for probate advice and support and probate and estate administration that might have been anticipated when the Clementi review first kicked off all those years ago. Emerging ABSs will be able to provide a range of services including:

  • Identifying and corresponding with the Personal Representatives and beneficiaries of the estate throughout the estate administration;
  • Identifying and corresponding with all financial institutions and organisations relevant to the estate throughout the estate administration;
  • Identifying, verifying and valuing all assets based in England and Wales;
  • Gathering all the assets of the estate;
  • Transferring all jointly held assets into sole name, including property;
  • Paying any debts and liabilities from the estate;
  • Preparing the accounts of the estate for the beneficiaries;
  • Distributing the estate to the beneficiaries;
  • Setting up any trusts relevant to the estate; and
  • Writing a new single will for the surviving spouse, if required.

Cost/benefit assessment

One of the most fervent lobbyists for legal services reform, Which?, has itself entered the market as a provider. Which? Legal Services has also entered the market with will-writing and storage services, though the latter is, ironically, unnecessary for consumers as the Probate Service will store your will for free forever, rather than the £50 charged by Which?

For those who really have no time to spare, www.tenminutewill.co.uk will charge you £29.95 for a ‘professionally checked’ will. It even plays soothing music when you log on!

Indeed the profusion of offers of services on the web and elsewhere is fuelling a debate for greater regulation or restriction of those who can provide will writing and related services, and, as reported on Legal Futures, the Legal Services Board has tasked its consumer panel with diving into the issue of whether there needs to be more not less regulation of what is a burgeoning sector (see ).

The Office of Fair Trading (OFT) has already shown its hand, in the light of the fact that the Scottish government is now introducing a regulatory framework for non-lawyer will-writers. The OFT seems to be rather against further regulation, or, rather, it is not against more controls over will-writing, but is against extending regulation in this area without a cost/benefit assessment, which should consider:

  • What problems exist in the market?
  • Who is causing them?
  • How effective is the current consumer protection?
  • Can it be improved?
  • What effect, if any, would reserving have on the market (both positive and negative).

Close co-operation

Whatever the outcome of this debate, working hand in hand with probate genealogists is and will remain particularly important because the issues surrounding wills and succession are often complex and thus probate genealogists can offer assistance with difficult cases, such as those involving no known next of kin or cross-border issues such as overseas beneficiaries in order to achieve a successful result for the client. 

Furthermore, as well as dealing with technical problems, there are also important commercial reasons why solicitors operating within ABSs should consider using the services of professional probate genealogists. For example, in cases of intestacies it is a common requirement of insurance policies for the solicitor to have instructed a professional probate genealogist to carry out the missing will-tracing exercise, which helps to ensure the solicitor is covered against the possibility of the will or recent will being found. 

By working with professional probate genealogists, solicitors can potentially avoid incurring unnecessary costs and diminish the risk of claims from overlooked beneficiaries. With the move towards outcomes-focused regulation instilled by the Legal Services Act, this will also allow for continued flexibility over charging, on the basis that it is right for the practitioner to look at a variety of fee options and to select the arrangement which is most appropriate for the circumstances.

There is broad benefit to be brought to consumers through close co-operation between ABSs and professional probate genealogists in wills and probate service provision. Building such arrangements will also bring benefit to consumers by opening up competition and widening consumer choice, in keeping with the spirit of fairness, flexibility and professionalism set out by the Legal Services Act.

Daniel Curran is managing director of probate genealogist Finders. See www.Findersuk.com

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