Setting standards

Publication of the second edition of STEP’s Standard Provisions (England and Wales) has elicited much interest from the legal community and sessions explaining the main provisions of the new document, the result of 13 drafts, numerous consultations with interested parties and a drafting committee comprising James Kessler QC, Judith Ingram, Professor Lesley King, among notable others, have been oversubscribed. However, while it is clear that such a guide will prove invaluable to avoiding gaps and inconsistencies in will drafting, it ought to be argued that a best practice for estate administration is also needed.

Fast paced

The probate environment has been changing for the last five to ten years faster than at any time before. Of the most recent figures available, in 2010 the number of contentious probate actions in the Chancery Division of the High Court fell slightly, yet there were still 64 per cent more actions than in 2006. Probate practitioners, faced with increasing scrutiny of their every action by prospective beneficiaries keen to maximise their inheritance, are being challenged to make sure that they do everything in their power to ensure that they are protecting administrators, executors and trustees from post-event claims, as well as distributing the estate to the beneficiaries really entitled to it.

The courts are also increasingly willing to apportion and vocalise their blame of solicitors who do not follow best practice delineated under case law in the run up to a will’s execution. Cases such as Burgess v Hawes and Key v Key make it clear that best practice is not only encompassed in the so-called ‘golden rule’ relating to testamentary capacity.

However, why should best practice only apply to will preparation? The administration of estates can be equally fraught and perilous. From the moment a solicitor has been appointed to administer an estate, how can they be sure that the will they are acting upon is the most up to date? One always hopes that the will one assisted in drafting and in one’s possession is the final will made by the deceased, yet there are more than enough cases in which administration has already been proceeding for some time before a later will is located. Should there be a shadow of a doubt, following a reasonable will search, surely the best way to proceed is to obtain missing will insurance for the eventuality for a newer will coming to light.

Following on from this, the solicitor must be sure that they are aware of all of the deceased’s assets. Dormant bank and building society accounts are one thing. What about shares and unit and investments trusts? The unclaimed asset register’s poor success rate (approximately ten per cent according to www.ThisisMoney.co.uk) can surely not be enough to cover against liability.
An executor’s duties, as defined by section 25 of the Administration of Estates Act 1925, include a duty of care to collect all of a deceased’s assets and to pay all liabilities. It is well known that under White v Jones a solicitor’s duty to his client (in this case, the testator), extends to beneficiaries under that testator’s will, and following Chappell v Somers & Blake, the executor of the estate can bring a claim against a solicitor who negligently administered the estate on behalf of the estate as a whole, even though the executor hasn’t suffered any loss directly.

Contact details

Next, can one be sure that the correct beneficiaries are receiving their entitlement? Where you are acting on a valid will, one hopes that their contact details will still be up to date or will be relatively easy to find. However, on an intestacy, time and again a cousin of the deceased has tried to convince professionals that they are ‘the only one left’. Confirm your family tree, remembering that a professional genealogist will charge much less than your hourly rate – and should be able to finalise the matter in much less time, as well as having access to many resources not publicly available.
Where insurance is needed, an established genealogist such as Fraser & Fraser will have their success reflected in preferential rates they can source from a number of different insurers, meaning that the specific facts of your case will be reflected in the quote obtained, especially so if combining a missing will and missing beneficiary insurance policy.

In Roberts v Gill & Co Solicitors, a case relating to the statutory limitation period, the House of Lords took the ruling in Chappell above even further, and held that the solicitors owed a duty of care to the estate of the deceased rather than the beneficiary (except in the ‘special circumstances’ as reviewed in Hayim v Citibank NA). This means a solicitor is duty bound to sell any known property which forms part of the estate for its best possible market value – and not the ‘probate value’ some estate agents suggest in order to achieve a quick sale.
Using a firm offering property management services will shift this burden from sourcing and policing the empty property insurance, the maintenance company, the estate agents and so on to simply making decisions while someone else ensures that these instructions are carried out to the highest level, allowing a solicitor’s time and attention to focus on more demanding matters.

Tick list

Finally, calculate the exact proportion each beneficiary is entitled to. Despite the laws of intestacy being governed by the Administration of Estates Act 1925, in a poll of solicitors in 2007 relating to a simple distribution (how to distribute an entitlement on which there is one maternal aunt and two paternal uncles on an intestacy and no other heirs) only two thirds of responses were correct.
Let experts in such work present results of investigations to your clients in a manner that they will understand and that will reassure and satisfy their concerns. By preparing a family tree, showing the relationship, and from there calculating the entitlement of family members, irrespective of the number of beneficiaries, a dependable firm of genealogists such as Fraser & Fraser will provide a report and distribution schedule to allow you to distribute the estate safely and accurately. These calculations may also be provided in a spreadsheet for use with your own software if required. Partners are then available to discuss findings and are prepared to give expert evidence at any formal hearing to determine heirship if the proposed distribution is contested.
Have peace of mind when administrating your estates with a simple checklist (see below) and a firm which can help fill in the gaps: Fraser & Fraser.

?    Current will search
?    Asset trace
?    Missing beneficiary found
?    Legal notices placed
?    Property management for optimum sales
?    Missing will/missing beneficiary insurance obtained
?    Entitlement and distribution calculations

Kasia Oberc is a relationship manager at Fraser & Fraser. Find who you're looking for; email legal@lostkin.co.uk or call 020 7832 1430