Solicitors should welcome calls for increased regulation of probate services, urges Chris Belcher

Last week the Legal Service Board (LSB) published two pieces of research it commissioned on the subject of the provision of probate services, with YouGov providing the research from the consumer side. The research attracted headlines in the legal press – but should estate administration be a ‘reserved activity’ for solicitors only, or should it just be better regulated?

Professional service

The YouGov report and statistics make for interesting, although perhaps not particularly surprising, reading. The respondents are broken down into two groups – those who chose to engage professionals and those who did not – and the number in the former group increased with the value and complexity of the estate, or where the estate involved inheritance tax and family trusts. Where an estate was valued under £325,000, 49 per cent opted to pay a professional but this rose to almost 75 per cent for estates valued at over £650,001.

Curiously, the incidence of those using a ‘professional service provider’ was much lower (35 per cent) where the deceased was intestate. YouGov suggests that this is because many of those who died testate had already arranged for a professional to carry out the probate services.

As the legal profession begins to face up to the reality of new ABSs, it is interesting to note that of those surveyed who did engage a professional service provider, 86 per cent went to a solicitor. Others consulted included financial advisers (three per cent), trust corporations (three per cent), accountants (two per cent) banks (two per cent) and will writers.

So does this mean that in the new world of ABSs, clients will always prefer solicitors to provide probate services? I wouldn’t be so sure. The YouGov respondents cited reasons for going to a solicitor such as “his will was stored with the solicitor so it was just easier to go with them” and “the solicitor my brother used had known him for 30 years so it just made sense” and “we were given a fixed fee on a discounted rate because we happened to be friends” which all point to clients making the easiest decision in a time of emotional stress, rather than being ringing endorsements of the legal profession.

Happily, solicitors were seen as being better at giving clients face-to-face time, setting out their costs and generally at communicating with their clients. Those surveyed also liked that the solicitor was regulated, with a proper complaints procedure and indemnity insurance.

And that brings us to the crux of the issue. The Legal Services Consumer Panel (LSCP), the consumer watchdog, is calling for a regulation of probate service providers, but not for probate to be reserved to solicitors.

Fall back

The YouGov report identifies regulation as being very important to consumers as it provides them with a fall back if something goes wrong. Indeed, one of the respondents said that he had chosen a more expensive firm in the past over a non-regulated provider to protect himself as an executor in case some thing did go wrong or a claim was made against the estate. This kind of protection afforded by regulation is clearly significant in giving consumers peace of mind.

LSCP claims to have identified six problem areas resulting in ‘consumer detriment’. First of these is fraudulent activity in the administration of the estate. LSCP acknowledges that though regulation won’t do much to stop it happening in the first place, at least the consumer would be given an avenue to pursue to reimbursement. Other complaints include excessive costs and delay and poor communication.
The YouGov report notes that many of the respondents were put off appointing a professional service provider due to the level of costs, however, 69 per cent of those people also admitted that they hadn’t actually obtained a quote for the work – maybe the risk of high costs is more perception than reality?

Consumers will become more savvy in future as they become more aware of the options available to them when it comes to appointing a service provider. From the reports we can see that they will be looking for a service provider who can communicate with them on their level and make them feel like they are being treated as an individual, who can work efficiently and diligently and provide them with clarity on costs.
At the end of the service they want to know that for the price they have paid, they have received value for money. Solicitors will be well placed to meet these requirements, but they are not the only ones who can do so.

As a legal profession we ought to welcome the competition that comes with sharing our service sector but not at the expense of the consumer. Probate clients come to us at a time of emotional stress and they can be vulnerable to anyone who seeks to take advantage of their position of trust. Maybe trust in solicitors will keep us foremost in the consumer’s mind and so ahead of the market, but ultimately it will be their choice to make, and I would certainly be happier knowing that whoever they chose, that person would be subject to proper regulation.

Chris Belcher is a partner and Jessica Bourne a trainee solicitor at Mills & Reeve LLP. Contact Chris on chris.belcher@mills-reeve.com; follow Chris on Twitter at @PC_Lawyer