Probate Practitioner's Handbook

• Publisher: Law Society
• Year: 2018
• ISBN:
  9781784461195
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The Probate Practitioner's Handbook is a well-established and popular guide to good practice for solicitors' firms that undertake probate and estate administration work.This new eighth edition has been comprehensively updated by leading experts to take account of developments relating to: money laundering issues including the requirements of the fourth EU Directive on Money Laundering and the new Trusts Registration Service probate disputes and Inheritance Act claims including the implications of the Supreme Court decision in Ilott v. The Blue Cross and Others inheritance tax including implications of the new residence nil rate band for those administering estates the new Guardianship (Missing Persons) Act 2017 and the procedure for declarations of death under the Presumption of Death Act 2013 proposed changes to probate fees.New chapters have been written to cover two increasingly important areas: the obligations of personal representatives in relation to digital assets dealing with foreign assets, domicile and residence issues.Features such as checklists, precedents, case commentaries and examples enhance the book's usefulness.

PART I

Probate and the professional rules

CHAPTER 1

Wills and Inheritance Protocol

Lesley King

1.1 CREATION OF THE PROTOCOL

The time of the generalist legal practitioner is well and truly over. Increasingly we are in an era of specialism. There are so many pitfalls involved in the drafting of wills and the administration of estates that those who engage in the work without the required specialist knowledge will inevitably, and rightly, risk negligence claims from aggrieved clients.

The Law Society introduced its Wills and Inheritance Quality Scheme (WIQS) in October 2013. It is intended to allow members of the public to identify firms that have practitioners with specialist expertise in this area. An integral part of the Scheme is the Law Society Wills and Inheritance Protocol (the ‘Protocol’) in which the Law Society has set out its ‘preferred practice’ in will drafting, probate and estate administration. Adoption of the Protocol is mandatory for members of the WIQS and voluntary for all other members of the Law Society (see the WIQS Scheme Design (Law Society, July 2013), para.2.2).

The Solicitors Regulation Authority (SRA) issued guidance on Drafting and Preparation of Wills (the ‘SRA Guidance’) on 6 May 2014, which is published online at www.sra.org.uk and was last updated on 11 July 2014 (see Appendix C). The SRA Guidance refers to the Protocol as a source of best practice and the Protocol covers most, if not all, of the points addressed by the SRA.

By introducing the Protocol, the Law Society aims to:

raise standards of client care and service by:

•setting out the Law Society’s ‘preferred practice’ in will drafting, probate and estate administration;

•improving communication between practices, clients and beneficiaries;

•increasing transparency and therefore understanding of the will drafting, probate and estate administration processes; and

•encouraging practices to agree time frames and service levels with clients.

(Protocol, Introduction)

Copies of the Protocol can be purchased from the Law Society. It also contains relevant statutory extracts and related Law Society practice notes (Wills and Inheritance Protocol (Law Society, 2013)).

1.2 STRUCTURE OF THE PROTOCOL

The Protocol is organised into the following parts:

•General obligations

•A. Will drafting

•B. General estate administration

•C. Special aspects of administration

•D. Advising on variation of dispositions

•E. Claims under the Inheritance (Provision for Family and Dependants) Act 1975

•F. General practice policies

•G. Will drafting practice policies

•H. Estate administration practice policies

The general obligations are, for the most part, designed to apply to the provision of all the services covered by the Protocol. They draw on existing standards of good practice contained in the SRA Code of Conduct 2011 and the Law Society’s Lexcel Scheme.

The obligations in Parts A–E represent the Law Society’s ‘preferred practice’ in will drafting and estate administration work and are drawn from case law, statute, regulatory requirements and good practice.

The requirement of the Protocol to have written policies, set out in more detail in Parts F, G and H, is intended to supplement a firm’s existing management systems and controls with documents that set out a firm’s consistent approach to the areas of wills and probate practice that are known to give rise to risk and errors. The Protocol does not prescribe the format and detailed content of policies but does specify certain points which must be addressed in them, giving a measure of flexibility. No policy can cover every variable so, inevitably, there will be cases where circumstances require the person providing the service to depart from the terms of the policy. A well-drafted policy will help a practice anticipate problems, reduce risk and deliver a consistent, high quality service.

Extracts from the Protocol, including the general obligations and Part B are reproduced in Appendix D of this book.

1.3 GENERAL OBLIGATIONS

The general obligations apply to all work undertaken in will drafting and estate administration matters and cover areas such as communication with clients, costs, vulnerable clients, sales practices and quality. They are mostly drawn from the rules and principles of solicitors’ professional conduct, past and present, and address the points raised by the recent investigation into the regulation of will writing. The general obligations are discussed further in Chapters 2 and 3.

1.4 WILL DRAFTING OBLIGATIONS

The obligations in Part A of the Protocol cover the whole will drafting process from the arrangements for taking instructions for a will to the options for execution and storage of the executed will. Although will drafting is outside the scope of this book, a brief overview of the will drafting obligations in the Protocol is given below.

1.4.1 Arrangements for taking instructions

These are aimed at avoiding problems at a later stage, for example those taking instructions must:

•identify any visual, communication and mobility problems and take appropriate steps to deal with them (obligations 1.1 and 1.4) in accordance with the practice’s policy for clients with a disability (as required by General Practice Policy GP.1);

•explain why it is beneficial to take instructions from the client alone (obligation 1.2);

•make arrangements for sight of any earlier wills (obligation 1.6);

•consider the requirements of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 in relation to cooling off periods and the provision of information (see 2.9).

1.4.2 Taking instructions

There is a mandatory requirement to use a template document to record interview notes in accordance with the practice’s policy, requirements as to the content of such notes (obligation 2.2) and a requirement to agree a date for the preparation of the will with the client, with default dates which apply in the absence of such agreement (obligation 2.4).

A substantial section deals with the ascertainment of testamentary capacity and the appropriate procedure when there is uncertainty as to capacity (obligation 2.7). See also Appendix D.

The Protocol draws a distinction between advice which is part of the ‘normal’ will making retainer and which must be provided as a matter of course unless expressly excluded in advance and further advice which, once alerted to an issue, the client may choose to have for a separate fee.

Policy WP.2 states that:

A practice will have a written policy on the use of standard letters/agreements which set out the terms of the will drafting retainer. This policy will address the following:

(1)Matters on which advice will be offered as part of the standard retainer.

(2)Matters outside the standard retainer on which advice can be offered for a separate charge.

(3)Any matters normally falling within a standard will drafting retainer which the practice is expressly excluding and on which separate advice would, therefore, have to be obtained.

(4)A fee structure clearly showing how charges are made for separate elements of the retainer.

For example, advice must be provided as to:

•any assets which will pass independently of a will;

•circumstances in which one person may have a beneficial interest in property in the legal ownership of another;

•the effect of the Inheritance (Provision for Family and Dependants) Act 1975 and those who can apply under that Act;

•whether on the basis of current assets and liabilities, the proposed disposition of the estate is likely to produce an inheritance tax liability and, if so, its likely extent;

•whether the devolution of any assets is likely to be governed by non...