I think I may be the beneficiary of a Will; can I ask for a copy of it?
Until the Will of someone who has died has been ‘proved’ at the probate registry it is not a public document and strictly speaking only the executors named in the Will are legally entitled to see it. Having said that, in practical terms, there will often be no good reason why the main beneficiaries should not be allowed to have a copy of the Will sooner rather than later after the date of death of the person to whom the Will relates and with the agreement of the executors.
Once the original Will has been formally lodged with the Probate Registry and a Grant of Representation issued to the executors (so that they can start to deal with the assets and liabilities of the estate), the Will becomes a matter of public record and anyone can therefore request a copy of it. It is possible to request a ‘standing search’ at the Probate Registry so that you will be notified as soon as a Grant of Representation has issued in a particular estate and have a copy of the Will sent to you. Typically it can take at least 3 months from the date of death of the deceased for the executors to be in a position to apply for the Grant of Representation.
How do I know if the executors are carrying out their duties correctly?
Those named as executor in the Will (and who do not choose to opt out of that role) are responsible for administering the estate. Broadly speaking this involves:-
Establishing what the assets and liabilities of the deceased were at the date of his death and obtaining date of death valuations;
Calculating and arranging payment of any Inheritance Tax that is due;
Obtaining a Grant of Representation – the form of legal authority granted to the person entitled to administer the estate - by completing and filing the relevant court forms and attending an interview at the Probate Registry;
Collecting in the assets and settling the liabilities of the deceased-which generally requires production of the Grant of Representation or an official copy of the same to the relevant holding companies, the Grant of Representation is also required before any sale of the deceased’s house or other land owned by the deceased can be completed;
Ensuring the deceased’s tax position to the date of death has been closed off and accounting for any income and capital gains tax due in relation to the period whilst the estate is being administered;
Distributing the estate in accordance with the Will to those named as beneficiaries (or in the absence of a Will in accordance with the strict rules of intestacy).
The executors are ultimately accountable to the beneficiaries. In particular they should be able to evidence how they have arrived at the value of the net estate (after liabilities and specific gifts have been dealt with) so that they can account for this to those entitled to it (‘the residuary beneficiaries). They can reasonably be expected to keep beneficiaries informed as the administration of the estate progresses and to respond to reasonable requests for information from the beneficiaries. They should be able to show that they are acting in the best interests of the beneficiaries and should ideally consult with the residuary beneficiaries where appropriate (for example in relation to a proposed timescale and the most appropriate price for marketing and sale of the deceased’s house if that is part of the residuary estate).
What if I feel that I have been unfairly left out of the Will of a person who has died or feel that I have not been adequately provided for?
A disappointed beneficiary may wish to consider whether there are any grounds for challenging the Will, for example if they believe the person who made it would not have fully understood what they were doing or if they feel he or she was unduly influenced by someone else. It is important to seek expert advice to establish whether such a challenge is likely to succeed. It is also possible to put a block on ‘probate’ whilst the validity of the Will is looked at. This is known as ‘caveat’.
Otherwise, a disappointed beneficiary may be able to make a claim on the estate notwithstanding the terms of the Will. In particular, a surviving spouse, a registered civil partner or a long term co-habitee may have a claim to more reasonable provision than allowed for in the Will. Other disappointed beneficiaries need to show that the deceased should have made provision to maintain them (usually on the basis that they were financially dependent on the deceased prior to his or her death).
Anyone who believes they have such a claim should seek expert advice as soon as possible as there are time limits for taking formal action after which the potential claim may be lost.
I was the joint owner of an asset with the deceased-what will happen to it now?
If the asset owned jointly with the deceased was held as 'joint tenants', the asset will generally pass automatically to the surviving co-owner(s) rather than passing under the terms of any Will (or under the intestacy rules if there is no valid Will). This would apply, for example, to a couple's joint bank account which should automatically pass to the survivor of them and the relevant bank would only need to see an original death certificate to amend their records. In contrast, a bank account which was held in the name of the deceased and another person but only for administrative ease should not necessarily pass automatically to that other person although the bank may not realise this.
Where a jointly owned asset is held not as ‘joint tenants’ but as ‘tenants in common', the deceased’s share will not pass automatically to the surviving co-owner(s) but will pass under the terms of the deceased’s Will (or in the absence of a Will under the rules of intestacy).
The deceased’s home or other land owned by him may have been held as joint tenants or tenants in common and this will therefore determine who will inherit the deceased’s share.
I would like to pass some or all of my inheritance on to someone else-is there anything I need to know?
It is possible to vary the distribution of an estate with the agreement of the relevant beneficiaries (those who will be giving something up). Someone inheriting from a parent might for example wish to pass some or all of the benefit straight down to his or her children. If this is done with an appropriate Deed of Variation drawn up within two years of the date of death then the distribution to the substitute beneficiary can take effect for Inheritance Tax purposes (and sometimes for Capital Gains Tax purposes as well) as if stated in the original Will. If no such Deed of Variation is implemented the sums or assets redirected to the substitute beneficiary are in tax terms an onward gift from the original beneficiary. Such onward gift may still be subject to Inheritance Tax as part of the original beneficiary’s estate if he or she does not survive 7 years from the making of it.
Rearranging an estate via a Deed of Variation can provide scope for significant tax savings either in relation to the deceased’s estate and/or in terms of the tax that might otherwise be payable on the original beneficiary’s estate in due course. It is important to seek expert advice.
N.B. This is intended as a brief guide to issues relevant for beneficiaries and is no substitute for tailored advice on the particular facts. If you are unsure as to your legal rights or responsibilities in connection with a particular matter then you should take specific advice from a legal professional. Please contact us and we can discuss how we can help you.
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