This report provides a review of the wills and probate market. A will enables a person (or persons) to decide what happens to their money, property and possessions after they die. Without a will, the Laws of Intestacy come into play, which means the State directs who inherits and benefits. The right to deal with a person’s property, money and possessions (their estate) after they have died is called probate. Probate is not always required, for example where the estate left has only a small value, or where all property and financial accounts are held in joint names with the surviving spouse or civil partner.
If a will has been made then it is likely that one or more “executors” will have been named in the will to deal with the person's affairs after their death and administer their estate. These executors could be private individuals or external advisors such as solicitors, banks, building societies, accountants.
There are differences between will writing in England and Wales and Scotland. In Scotland will writing is a reserved activity while in England and Wales it is not. There are certain types of legal advice that can only be undertaken by entities and individuals that have been authorised (and regulated) by an approved legal services regulator. These are called “reserved legal activities”. In England and Wales, will writing services are not reserved legal activities so, as well as solicitors and law firms, other providers can offer these services. This has led to concerns over the quality of some unregulated will writing services, high fees charged by some suppliers, and aggressive selling tactics. In Scotland, recent amendments to the Legal Services (Scotland) Bill mean that all will writers here are now regulated.
There are also some specific differences between England and Wales and Scotland. In Scotland, a child over 12 can make a will but it is 18 in England and Wales; an inheritance can be taken from the age of 16 in Scotland; some of the terminology is different, such as ‘probate’ (the administration of an estate), which in Scotland is called ‘confirmation’.
Some areas of probate are reserved activities. Probate activities include preparing any papers in relation to obtaining or opposing a grant of probate or letters of administration. The Legal Services Act reserves to authorised persons “probate activities” defined as “preparing any papers on which to found or oppose a grant of probate/letters of administration”. However, the task of estate administration following a grant of probate involves a series of multiple and sometimes overlapping stages while the reserved activities definition is narrow so, even here, there is some confusion over what should be included in reserved activities.
One announcement from the Ministry of Justice since the last report is the proposal to increase probate fees for the highest-value estates and to raise the threshold value of estates exempt from paying any fees to £50,000 up from £5,000. This is explained in more detail in the “Recent Developments” section of the report.