By Helen Forster, Director, HTF Legal Limited takes a look at best practice for private client professionals.
The nature of our society continues to evolve and this means the risks to consider when it comes to Will writing, estate administration and Will bank management have changed in recent years too. Traditional family units have modified, people are living longer, (which can often mean more cases of mental incapacity) and we are seeing an exponential growth in electronic or digital assets.
These are just a few considerations which have altered the dynamic of how Wills should be drafted and managed and how estates are administrated and should be taken into account when thinking about how to ensure the best service possible for clients but also to protect the law firm.
A further challenge is that we currently live in a ‘blame’ culture. The number of firms offering advice for contentious Wills, probate and trusts, according to the IRN Research report, UK Wills, Probate & Trusts Market 2022: Market Trends, has more than doubled between 2018 and 2022. What was considered best practice ten years ago is very different today, and this can be a big problem for firms if they have not reviewed practices and procedures. So, what are some of the main issues?
Identifying the Last Will and Testament
When a Will was made is an important consideration. If a Will was created just a month before someone has passed away, and a firm has acted as the family’s solicitor for some time, it is likely that it is the last Will and Testament for that person. However, if it was made a few years prior to death – how do you know? The deceased may have instructed another law firm and created a new Will.
I was made aware of one private client firm that did not make enquiries about a more recent Will and administrated the estate on an earlier, incorrect iteration they had on file. The deceased had actually made a new Will with another solicitor, the beneficiaries were different and the firm was deemed negligent.
At HTF Legal we work with Estatesearch for various services including Will searches to ensure due diligence in establishing the most recent Will. We also complete a Will search where the deceased is not known to have a Will, to ensure no stone is left unturned.
Best Practice in Retaining Wills
The trend to go paper light these days gives rise to questions about how Will banks should be best managed. Until someone with authority gives permission to destroy the original copy of a Will, technically it should be retained for a ‘long stop’ of 12 years after death. This means if there is no Grant of Probate and no one comes forward, any claims against the estate can be checked against the original Will before that time has elapsed.
However, if your firm is not notified of a death when does that 12-year clock start? Over the past few years, I have consulted with Estatesearch about the development of their new Will Bank Management service. As well as data screening and cleansing for Will Banks, Estatesearch now offers a notification service informing legal firms if a subject in their Will Bank has moved house or passed away. It means once Will Banks have been cleansed, they can continue to be kept up to date, in compliance with GDPR regulations. It also means firms know how long to keep Wills on file, and they can also proactively invite clients to update their Will after a set period of time if appropriate.
Digital Assets
According to the Law Society, 25% of people have discussed electronic or digital assets with their legal practitioner in relation to a Will. This means three quarters did not! The value of digital assets is not something which was we needed to worry about in the past, however, with an estimated 11% of the UK population investing in Crypto currency as of 2024, it is now advisable to discuss electronic assets with clients when drafting a Will. The appointment of a digital executor to manage such assets and how they will be accessed in the event of death, will also help avoid unclaimed assets becoming Bona Vacantia as ownerless property.
If no provision has been made in the deceased’s Will for such assets, Estatesearch also offers a Digital Asset search which includes leading Cryptocurrency exchanges, online gambling providers and money transfer platforms and online marketplaces such as Paypal and Etsy. Estatesearch undertakes enquires on behalf of the firm to ensure due diligence obligations have been met, allowing them to demonstrate that they have done everything possible to identity the full extent of the estate for their clients.
Electronic Wills
The Law Commission is currently working on developing a process for electronic Wills. This will create new challenges particularly in relation to potential fraud and providing proof of last Will and Testament.
The developments and issues outlined in this article are just the tip of the iceberg when it comes to Will writing services and the management of Will banks and correct identification and distribution of assets. As legal professionals, we will all need to continue to adapt our practice policies and procedures to accommodate changes in society or new regulations. The evolution of our own practices means we can continue to provide the best service possible for our clients and ensure their wishes are followed, in addition to proving due diligence and avoiding risk for the firm.
To help legal firms keep abreast of the latest developments and best-practice HTF Legal runs in-house and bespoke training sessions. For more information please see: Training Courses — HTF Legal (htf-legal.co.uk)
Originally Published on Today’s Wills and Probate