Estate Law is a complex practice where circumstances and details can differ significantly from case to case. Wills are a particular area of risk.
In 2024 we commissioned a survey of 2,000 Canadian residents and found only half the respondents have a Will (51%) and of these, 20% said that it needs updating. This is a worrying statistic as there could be assets which are not accounted for in the Will, something that could lead to unnecessary additional legal costs, tax recalculations or in the worst-case scenario, estate disputes and litigation.
Of those who had a Will, only 55% had engaged with a lawyer to write the Will. Of those who wrote their own Will, 28% did not or were unsure if it had been witnessed by two independent witnesses, or whether this was needed.
Where lawyers have been instructed to draft a Will properly, there can also be issues and this has become the subject of malpractice claims. In fact, according to LawPro, claims have ‘increased steadily over the last decade, nearly doubling in frequency.’
In this area of law, communication, accuracy, and time management are key to try and avoid some of the most common areas which can lead to claims of malpractice.
LawPro has put together a handy Wills and Estates Claims Fact Sheet which can be found here: Fact Sheet (PDF) and which can be summarized as follows:
- Wills and Estates is the third highest claims area, with an average 328 claims per year totalling £9.1 million
- Inadequate investigation makes up 38% of claims – failure to locate assets or the most recent version of the Will
- Communication failures account for 1 in 4 claims
- Errors of Law are the cause of 13% of claims – not meeting regulatory requirement particularly when it comes to tax issues
Mitigating Risk in Estate Administration
It’s key to have stringent processes in place to protect your firm from any risk, ensuring that no stone is left unturned when performing your due diligence. This is particularly important when it comes to closing an estate and ensuring all the assets are accounted for, all the debts and taxes settled, in addition to locating all the beneficiaries.
At Estatesearch, we work with law firms to implement policy that supports asset discovery. Our Financial Profile Service – which is a comprehensive asset and liability search – acts as a liability bridge to protect the firm and clients should a financial asset be missed on distribution and which later comes to light.
Our Financial Profile Search helps lawyers quickly build a better understanding of clients’ financial affairs to manage and/or administer an estate effectively. Using information and data from a variety of sources, Estatesearch currently notifies more than 150 organizations. The resulting report enables lawyers to make further enquiries and clearly demonstrates the steps undertaken to identify all assets and liabilities.
Searches are ordered through Estatesearch’s secure, online platform, providing access to a growing range of essential due diligence services, helping firms manage everything in one place. With no registration or subscription fees, firms only pay for the searches services they need.
To find out more about how we work with lawyers, paralegals and law clerks to assist with asset discovery, best practice and mitigating risk in estate administration cases, please explore our Services Page or Contact Us via our web form.