Solicitors’ Delay in preparing a Will – When is it Negligent?
Clients often ask:
While sometimes, the answer to both questions is, properly, “as if by magic”, the simple answer is because clients have taken our advice and kept a copy of their Will and details of their assets in a safe, secure and obvious place at home.
Where a Will has been prepared by a firm of solicitors, that firm will normally keep the original and the client will keep a copy with his papers. The copy Will and correspondence will normally direct the Executors to the firm of solicitors in question.
Occasionally, where the family can’t find a Will and there’s no clear as to its existence and who prepared it, a round-robin letter may be necessary to solicitors in the area local to where the deceased lived and, if all else fails, an advertisement can be put in the “Wills and Whereabouts” section of the Law Society Gazette.
There is no legal requirement in England and Wales to lodge details of a Will or Codicil with a central register; this comes as a surprise to a lot of clients. There is a “National Wills Register” but this is a voluntary database and not much used; a search of the database will nevertheless be carried out if a Will can’t be found.
In order to obtain a Grant of Probate, an Inheritance Tax Account must be submitted to HMRC including all assets and liabilities at the date of death; collecting details of a deceased’s assets and liabilities is the first, and can be the most time consuming, part of the probate process.
While paperwork left behind by the deceased will normally give a clue as to which organisations and institutions should sensibly be written to for assets of any accounts or investments held, unexpected assets often turn up after probate has been granted and the inheritance tax bill paid. In these circumstances, a Corrective Account needs to be submitted, with interest and, possibly, further legal costs.
Where paperwork is lacking, establishing the full extent of the Deceased’s assets and liabilities can be tricky. One may need to search the “Unclaimed Assets Registry” (normally employing agents at a small fee to carry out the task).
In my experience, deceased clients prove to have fallen into one of two categories – those that throw nothing away, and those that throw everything away.
The “perfect” deceased (from a probate lawyer’s perspective) is a person who keeps a copy of his Will, the schedule of assets, and appropriate original documents (like pension and insurance policies) in a single location in their home providing a complete and instant snapshot, if not of all assets and liabilities, at least of where and to whom to write to secure the necessary information.
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