Public told to beware the executor acting at will: Law should be changed to give beneficiaries more power, says Consumers' Association

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The Independent Online
THE Consumers' Association is calling for urgent controls on banks and solicitors acting as executors after finding worrying lapses in the way that wills are prepared.

More than six out of 10 people have not made a will, and should be encouraged to do so, otherwise rigid laws decide who will inherit when you die.

Wills can also be used to avoid paying inheritance tax, and for parents it can settle who would be appointed as guardian to look after your children.

But the Consumers' Association warns: 'The role of executor gives great power with little, if any, accountability. It's a power that all too often is abused through high charges and behaviour that can be incompetent or worse.

'The law must be changed so that beneficiaries of wills are able to dismiss professional executors (unless that is expressly forbidden by the will).'

In a survey carried out for Which?, the magazine of the Consumers' Association, most firms explained what executors do - put the will into action - and allowed the will-maker a free choice.

But a solicitor at Connor Malcolm in Edinburgh said he always put himself in as executor because the beneficiaries would need legal help, although this is not neccesarily the case. Another Edinburgh solicitor at McCosh & Holmes told the Which? researcher that she had a free choice of executor, but included his firm in the will as solicitors for administering the estate. The Which? expert said this was 'close to professional misconduct'.

If you are leaving most of your estate to one or two people, the main beneficiaries can be made executors. Lay executors can always hire professional help if they need it. Which? recommends those who want to appoint a professional executor also to appoint a lay executor to check up on the professional.

Overall, one in five wills tested by Which? were judged as being of poor quality.

The eight specialist will writers and insurance companies' wills collected four 'poor' ratings. Not a single one was categorised as 'good'. Five of the 31 wills drafted by solicitors were rated as poor, six as good, and 20 as reasonable.

You can complain to the Solicitors Complaints Bureau if you think you have not had a professional service. But where the solicitors are executors, they are deemed to be their own clients and so the Law Society cannot intervene.

If children under 18 inherit money it must be held in trust for them. The executors or anyone else can be appointed as trustees. They will be severely limited in their powers unless the will enables them to invest as they wish, so they are not restricted to safe low-yielding investments. Trustees can advance up to half the capital and all the income for the children's maintenance and education before they inherit, but this can be widened under the terms of the will.

In the Which? test, 20 out of 30 firms failed to explain that trustees could be given wider powers. In eight cases, the wills contained inadequate provisions for those powers.

The will for Suzanne A, who has children and is separated from her husband, drawn up by a Midland Bank branch, did not even appoint a guardian.

The average cost of a will was pounds 52, but fees ranged from pounds 23.50 to pounds 117.50 in Scotland, and from pounds 35.25 to pounds 88.12 in England. Will writing firms charged between pounds 40.00 and pounds 58.75.

NatWest, Midland, Royal Bank of Scotland, Clydesdale and Ulster Bank all insist on being named as executor, according to Which?. Midland's minimum charge is pounds 1,500. Barclays charges 2.5 per cent on the first pounds 250,000 and 1.5 per cent on any other sums in the will, plus pounds 265 per beneficiary.

After Barclays temporarily mislaid a will it had been storing for safe-keeping, the family asked for recompense for the distress caused. Barclays said it was renouncing its executorship of the will as it would have cost up to pounds 700 in fees. Which? commented that this seemed rather steep for an estate of deposit accounts and personal effects worth less than pounds 30,000.

Will writing services are unregulated. Anybody can set up in business with no training or experience. There are no channels for complaints and no protection if the firm fails. The Law Society is campaigning for controls on these firms.

(Photograph omitted)

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