The perils of DIY probate

An increasing number of executors choose to deal with an estate themselves when a close relative dies. But is this really a wise move, asks Alvin David, of our Wills and probate team…

The reality is that probate is usually a complex process, even where the estate appears, as to be small and straightforward. If you take into account the feelings of grief and the need to adapt to the loss of a loved one, you need to consider carefully whether you want the responsibility of calculating the inheritance tax liability and taking on the risk of personal liability if things go wrong.

You will be personally liable
As the executor dealing with the estate, you could be liable for debts which are left unpaid. What does this mean in practice? You will have to pay out of your own pocket if a beneficiary does not receive their rightful inheritance from the estate, for example because you did not obtain the true market value for a property; or if an unknown beneficiary comes forward after you have distributed the estate; or when there is an outstanding inheritance tax bill.  You will not be able to plead ignorance to avoid payment. This is a heavy risk to carry.

All the estate debts need to be settled before any beneficiaries are paid their share. The only way to avoid personal liability is to make sure the estate is dealt with properly and the best way to ensure this is to instruct a specialist solicitor who has had appropriate training and experience.

Valuing the estate
Before applying for probate, you will be required to swear an oath stating the value of the estate. You may need specialist advice on how to calculate this total because different factors need to be considered, such as the amount of gifts in the previous seven years.

Tax calculations
Most estates have tax issues to deal with and more estates than ever are now liable for inheritance tax (IHT). If an estate is worth more than £325,000, IHT is chargeable at 40 per cent of the value that exceeds that amount. With many properties worth at least that amount, it is not hard to see why so many estates come within the IHT band. 

There are various tax reliefs and exemptions available, including for your main residence, charitable legacies and business assets. The rules are complex, and an incorrect calculation could mean that you pay the wrong amount with the result that the beneficiaries could be out of pocket and you will be liable for the shortfall.

You also need to know that inheritance tax often needs to be paid early and this can mean a cashflow problem for the unwary. Furthermore, it is the executor’s responsibility to pay it.

Passing on the responsibility for payment of IHT to a beneficiary is not worth the risk. In a recent case, the executor transferred the estate assets to a beneficiary on the basis the beneficiary would be responsible for paying the tax. However, the beneficiary disappeared with the money and the executor was held personally liable to pay it.

There may also be other tax issues to consider, such as whether any lifetime gifts were made which could attract IHT, or if income tax is payable on any trust or rental property.

The risk of an unexpected claim
The growth in extended families has meant an increased risk of an unexpected claim by an unknown beneficiary. Suppose you deal with the estate yourself: it all goes according to plan and you have just paid the last of the beneficiaries their portion of the estate when someone makes a formal claim against the estate purporting to be entitled to a share.

Again, you could be personally liable if their claim was to succeed, unless you have publicly notified creditors of the death through appropriate newspaper adverts. Although this is not a strict legal requirement it does provide important protection should such a claim arise.

DIY probate is rarely cost effective
The reality is that if you try to do the probate yourself, you risk missing important steps which could result in a costly mistake. It makes sense to invest in specialist advice from a solicitor who is backed by professional indemnity insurance. You will then have the reassurance that the estate is being administered properly and in accordance with the law – giving you peace of mind at what is undoubtedly a very emotional time for you and your family.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Non-compete clauses: Ruling boost

A UK Supreme Court decision will give comfort to employers looking to enforce contractual clauses that restrict employees from leaving to work for their competitors, says our dispute resolution specialist John Lennon.

So-called ‘non-compete clauses’ can be vital in preventing key staff from damaging a business immediately after they leave, for example by bringing a company’s key clients over to a competitor. 

Employers have come to regard non-compete clauses as a waste of time. However, the Supreme Court’s ruling Tillman v Egon Zehnder Limited [2019] UKSC 32, confirms that where there is genuine business interest to protect, and the clauses are drafted reasonably, non-compete restrictions can be upheld. 

In the Tillman case, the employee’s contract stated that for 12 months after leaving she must not “directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company”.

The Supreme Court found the words “interested in” rendered the clause too broad. But instead of striking down the entire clause, the court held that the words “interested in” could be omitted and the remainder of the clause would stand.

It would appear employers can now be more confident about the robustness of non-compete clauses so long as they are well drafted and signed by the employee.

Non-compete clauses should also be regularly reviewed and updated to reflect particular risks posed by the departure of that employee as the business develops and their role in it changes.

Your Will: Don’t put it off!

Most people don’t like to think about their own mortality, but planning for the future is important to ensure your property, money and possessions are distributed the way you intend. Here. Alvin David, one of our Wills specialists, offers his thoughts on a very important subject…

A study from YouGov in 2017 found that 62% of the UK’s adult population did not possess a Will. In fact, most people tend to put it off, with only 36% of 45 to 54-year-olds saying they have a Will, compared to 67% of over-55s. When asked why they hadn’t made a Will, the main reason was simply that they “hadn’t got round to it yet”.

If you’re among the majority of people in the UK who haven’t drafted a Will, this article covers why you need one, how to go about making one, and what could happen if you don’t.

Why do I need a Will?
The simple reason for having a Will is also the most obvious: to ensure your wishes are fully met after you die. It’s the only way to guarantee your estate – which is made up of your money, possessions, property and any investments – goes to the people or causes you care most about. This should provide financial security to your family and their descendants, while Wills can also be used to outline guardian arrangements for any children under the age of 18. Dying without a Will or having an ambiguous will can cause family disputes, so making your wishes clear should mitigate any potential for conflict. 

If you’re married or in a civil partnership, having a Will is less important as your spouse or civil partner will be your next of kin and beneficiary to at least half of your estate. However, your partner has no right to inherit your estate without a Will if you are unmarried or have not entered into a civil partnership.

How do I make a Will?
A good place to start is to value your estate by drawing up a list of your assets and debts. This is something you should review every time your circumstances change. Assets usually include any property you own, savings, insurance or endowment policies, pensions that may pay out a lump sum on death, and stocks, shares or investment trusts you may have. It’s also important to take into account any debts, such as mortgages, overdrafts, bank loans and credit cards, when calculating the total value of your estate. From there, you need to think about how you want your estate to be distributed and to whom.

Make it clear who stands to benefit from your estate and if you want to make any charity donations. Then it’s time to pick the executors of your Will – the people, or person, who will distribute your estate to your beneficiaries after you die. This role should be fulfilled by someone you trust implicitly, although you can appoint up to four executors to manage the administrative work, to check each other and balance judgements.

Tax considerations
When you’re thinking about what you want your beneficiaries to receive, you’ll need to take the tax on your estate into consideration. Estates above a value of £325,000, or £650,000 for a married couple or civil partnership, could be liable for inheritance tax (IHT) at 40% on the excess. An additional threshold of £150,000 (rising to £175,000 in 2020/21) can be used on top of this for passing on a family home to direct descendants, as long as it meets qualifying conditions.

You can reduce the value of your estate by giving certain gifts, as long as you do this at least seven years before you die. There are also some types of gift that are exempt from inheritance tax altogether, whenever they are made. Other complex rules and exemptions apply to IHT, so be sure to talk to us before making gifts as part of your estate planning.

What makes a legally valid Will?
If you feel compelled to draft a legally valid Will on the back of an envelope, you will need to apply strict criteria for it to be binding. For instance, you must be an adult of sound mind, and draft your Will voluntarily. The Will must also be made in writing. When you sign it, you will need to be in the presence of two adult witnesses, who also need to add their signatures to confirm they witnessed the process.

Another important thing to consider is that your witnesses, or their married partners if they have any, must not be any of the named beneficiaries in your Will. You cannot make a legally valid Will under duress or with no witnesses present.

The same criteria apply when it comes to reviewing your Will. If you have been diagnosed with dementia or a serious illness, you can still make or update your Will as long as you’re present, mentally capable of making a Will, and able to direct someone to sign it on your behalf. Any Will signed on your behalf should also contain a clause saying you understood the Will’s contents before it was signed.

Can a will be updated?
Yes – and you should always update your will when your circumstances change or, as a rule of thumb, review it every five years. Changes of circumstance could include the birth of a new child or grandchild, getting married or entering into a civil partnership, or even moving house.

It’s general practice to add to an existing Will, rather than conduct a wholesale update, and this is known as a codicil. This also needs to be signed and witnessed. Alternatively, if you need to make substantial changes, you can draft a completely new Will. This new Will must contain a revocation clause to prevent the legal effect of any previous Wills or codicils. Marriage, remarriage or entering into a civil partnership cancels any previously existing Wills.

Divorce does not cancel an existing Will but merely causes any gift to the divorced spouse to no longer be applicable. Whether this is your intention or not, it’s generally advisable to cancel and rewrite your Will in such cases. 

Consequences of not having a Will
Failure to write a legally valid will before you die will result in your estate becoming subject to intestacy rules, so it may not go to the people or causes you want. Your estate will then be distributed according to fixed rules and will not take your personal wishes into account.

The following scenarios apply if you die without making a legally valid Will:

The first £250,000 of your estate, plus half of the remainder and your personal possessions, will go to your spouse or civil partner, while any children will receive the other half of the balance. Where no children are involved, your spouse or civil partner will inherit your whole estate, which includes all of your personal possessions.

If you are unmarried or not in a civil partnership and did not make a Will, your partner will not automatically be entitled to penny of your estate – even if you have children together or have cohabited. In such a situation, your partner would need to make a claim under the Inheritance Act 1975, which could award them some of the estate. This is also true for any dependant omitted from a Will. Your children stand to inherit your entire estate if your spouse or civil partner dies before you do, and your estate will be equally divided between your children.

Parents, siblings, nieces and nephews are in line to be your next of kin if you don’t have a partner or any children when you die.

To discuss writing or revising your Will, contact Alvin David on 020 8979 1131 to set up an appointment.

The House Purchasing Process

So you’ve made an offer on a place and it has been accepted. Now it’s time to get the ball rolling on legally transferring the ownership to you. Anjum Khaliq of our conveyancing team sets out the process…

Purchase Pack
The purchase pack is the initial documentation, containing terms and conditions and the client information questionnaire. Once you have appointed us, we send this to you straight away. We ask you to return the completed pack to us together with your identification documentation. When it is all received, we start the legal work.

Memorandum of Sale
Your estate agents (if applicable) will send us a copy of the Memorandum of Sale, which provides the details of the property, the amount offered and the name of the sellers and buyers and their conveyancers.

Mortgage
We will need to know if you are purchasing with the aid of a mortgage and, if so, who the lender is and how much you are borrowing. We will want to check if there is any element of the purchase that we are legally bound to report to your lender, for example if you receiving funds as a gift or loan from a third party, typically a family member.

Contract Review
The seller will complete a fixtures, fittings and contents form and provide specific details about the property. You will need to check the details and inform us if there is anything that needs clarifying.

Arrange a Surveyor
We recommend carrying out a full structural survey for the property. You should not rely on the valuation report issued by the lender’s surveyor as it is very basic and is produced for your benefit.

Property Searches
We will request searches which will include Local Authority Search, Environmental Search, Planning and Water and Drainage Search which are standard searches. If there is a particular search you would like carried, for example Crossrail or HS2 or a specific infrastructure matter, we will do that for you. See the story opposite for more about searches.

Report
We will examine the documents provided and raise enquiries with the seller’s conveyancer before sending you a legal report. This will contain information about the title to the property and a preliminary draft of the contract and transfer for you to sign.

You should read the contract carefully, sign it and return it to us. The transfer is the legal document which both seller and buyer sign to transfer the ownership of the property. This must be signed in the presence of an independent adult (18+) witness. The original should be sent back to us. We will also report to you with the Mortgage Offer (if applicable) and will send you the Mortgage Deed for your signatures. The Mortgage Deed also should be signed in the presence of an independent adult witness.

Deposit
Once you are happy with the searches and enquiries, we will require the deposit funds to proceed to exchange of contracts. This is normally 10% of the purchase price. We will account to you after exchange of contracts with a financial statement that shows the funds you have paid, the mortgage funds, Stamp Duty and professional fees and disbursements.

If you are buying and selling simultaneously, we would normally use the deposit received from your purchaser to pass on to your seller and, if required, will request the additional funds from you.

Buildings Insurance
It’s important to have buildings insurance in place by the exchange date. This will be a condition of your mortgage lender and will protect your investment in the property and your mortgage lender’s interest as well.

Exchange of Contracts
When the contracts have been exchanged, both seller and buyer are contractually bound to complete on the agreed completion date. The conveyancers usually exchange contracts over the telephone and then send the completed signed contracts by post. Exchanging contracts by your conveyancer legally binds both parties to transferring the property, so you can rest assured the seller must vacate on the day of completion. Mortgage monies will be requested from your lender and the paperwork will be collated in readiness for completion.

Completion Day
On the agreed day of completion, we will send the outstanding balance of the purchase price which you have provided to us, including the money received from your mortgage lender, to the seller’s conveyancer by telegraphic transfer. As soon as they receive the monies, they will inform us and the estate agents and the keys can be released. The property will then be legally yours.

Application Land Registry
Once completion has been confirmed, we will pay stamp duty land tax on your behalf.  We will also make an application to Land Registry with the change of ownership form called the Transfer Document signed by the vendor.

Title Deeds
Once Land Registry has processed the application, you will receive a copy of the title information document showing you as owner. This usually takes a few weeks, slightly longer if the property is a new-build.

Prenuptial agreements

According to a leading bridal magazine, the average amount spent on a wedding in the UK in 2018 was nearly £18,000. With so many things to think about and plan for, it is easy to ignore the issue of a prenuptial agreement, particularly if you do not consider yourself to be among the super-rich.

Sadly, the Office of National Statistics estimates that over 40 per cent of marriages will end in divorce. “This is a risk that every couple needs to take seriously, particularly if they have any involvement in a family business,” says David Anstee, managing partner and family law specialist with KWW Solicitors.

In this cautionary (and fictional) tale David looks into a crystal ball for a couple who had reservations about making a prenuptial agreement…

Patty met Phil at university and they married soon after graduating, moving to live with Patty’s parents on the family farm before having three children. Patty took over running the farm about six years ago, something which was always in the pipeline. Her parents gifted her the farm land and outbuildings. Patty is the third generation to run the farm and it is hoped the farm will pass on to the fourth generation in the future. 

After 25 years of marriage, their relationship has broken down and Patty and Phil are about to apply for a divorce. Alongside concerns about the wellbeing of their children, Patty and her parents are worried about how the financial assets will be divided. Aside from the emotional upset over any potential erosion of the family legacy, it would be almost impossible to sustain a living if the farm was split or a part had to be sold. 

Phil’s solicitors advise him that he is entitled to seek 50 per cent of the marital assets, including the farm. Without a prenuptial agreement, Patty and Phil find themselves in the midst of lengthy, expensive and bitter legal proceedings. 

Litigation takes months and then years to conclude and costs mount up. As well as legal costs, there are professional costs for accountants and surveyors to pay for valuations of the farm assets and the operating business. As there is land and buildings with the potential for development, then other professional fees are incurred too.

Phil wishes to move away from the area and start a new life but is unable to do so while there is such uncertainty over his financial standing. The farm business also starts to suffer with the uncertainty and lack of cash investment for improvements.

It would all have been so different if they had entered a prenuptial agreement.

Much like life insurance, a prenuptial is something that you hope you will never need to use, but it can be of great benefit to your family’s future if it is required. The main aim of a prenuptial agreement is to set out clear expectations of what each spouse will be entitled to in the event of divorce. The agreement allows a couple to agree to deal with pre-marital assets and assets that are inherited or gifted solely to one party of the marriage (non-matrimonial assets) in a different way to assets that are jointly owned or acquired during the course of the marriage (matrimonial assets). 

If Patty and Phil had entered a prenuptial agreement, it would be possible to deal with the farm in a different and separate way to the rest of the assets. This would provide certainty for the couple, and the next generation who wish to continue running the family farm. 

In England, prenuptial agreements are highly persuasive if drawn up properly and well in advance. They can be used for couples intending to marry or enter a civil partnership.

If you are browsing wedding magazines and making a list of things that you need to organise, then don’t forget to make an appointment with a solicitor to discuss a prenuptial agreement.

You might feel awkward raising the subject now but it can save a lot of heartache and acrimony later if you find yourself contemplating divorcing and the division of your assets. A prenuptial agreement also allows spouses to remain on more civil terms with each other after separation, which can benefit any children immensely. It can also save you both on future legal costs and help you move on faster after divorce. 

For further information on how you can benefit from a prenuptial agreement, please contact David Anstee.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Making a Will when you retire

Having a Will is important for every adult but is even more so as you enter retirement and start to put your affairs in order.

With time on your hands, it is a good opportunity to make an appointment with your solicitor to make or update your Will and plan for your old age while you are in good health and can think clearly about the issues involved.

“It is natural to put off making a Will thinking that there is always time to do it later, but a sudden change in health can occur without warning. Without a valid Will, the law dictates who inherits your estate under the intestacy rules,” says Karen Starkey, a Wills specialist at KWW Solicitors.

Here, Karen explains why you should make a Will as soon as possible; and how mental capacity and undue influence are particularly important issues to consider.

Testamentary capacity
The law requires certain conditions to be satisfied when you make your Will, otherwise it is unlikely to be valid. If your Will is declared invalid, the statutory rules of intestacy apply, which means your nearest living relatives will inherit your estate – something which may not be in line with your wishes.

One of these requirements is that you have what is known as ‘testamentary capacity’ at the time you make your Will. To have testamentary capacity, you must be able to understand the nature and effect of making a Will, the extent of your estate and the impact of your proposed instructions. Also, you should not have a mental illness which influences you to make gifts you would not have made otherwise.

In the case of an elderly person, mental capacity is more likely to be an issue because of the increase in dementia, Alzheimer’s or other illnesses affecting cognitive abilities. The courts have even held that a Will made while someone was suffering from severe grief was invalid because of a lack of testamentary capacity.

If you are thinking about a Will but you are concerned about your mental health and your ability to make a Will, it is vital to take expert specialist advice as the evidence of a doctor may well be needed for your protection.

When medical evidence is necessary
If your solicitor is concerned about your testamentary capacity to make a Will, or thinks there is a risk a relative could ask the court to declare your Will invalid because you lacked testamentary capacity, they will ask a doctor to provide evidence that you have capacity to make a valid Will.

In law, this is known as the ‘golden rule’ and requires your solicitor to have your Will approved or witnessed by a doctor who must be satisfied of your capacity and understanding in making your Will if you are elderly or suffer from a serious illness. The doctor must record and report their examination and findings about your capacity.

This evidence could make all the difference between the smooth administration of your estate after your death and an expensive dispute involving allegations that you lacked capacity.

Duress and undue influence
There is absolutely no reason why you should not discuss your Will with your loved ones, in fact most older people prefer to talk things over with their family. You will want to discuss who you would like to act as your executors and you may, for instance, ask your children if there are any specific items of jewellery, furniture or artwork they would like to be left. 

However, enlisting their help and asking for their preferences is one thing but there must be no evidence of duress, or undue influence which amounts to coercion, in that it overpowers your own wishes; the court is likely to declare the Will invalid.  

The words or behaviour used may not be outright blatant duress, it could be a ‘drip drip’ feed of subtle undue influence leading you to make a gift you would not otherwise have made. In one case, a child gave her parent deliberately incorrect information to secure her inheritance. The court said this amounted to undue influence.

You should also be wary of making gifts to non-family members who you may not have known for long. Elderly people, particularly those who are lonely, are often particularly vulnerable to being befriended by individuals who have ulterior motives.  There is nothing wrong with leaving anything to people who are kind to you but if there is any evidence of undue influence such a gift could be held invalid.

Disinheriting a child
Exercise caution if you are thinking about cutting a child out of your Will. There has been a run of cases where adult children have brought legal claims for money out of their parents’ estates, even in situations where they have been estranged for many years. 

Unless there is clear evidence that your estrangement has been caused solely by their own conduct or behaviour, and you have not been supporting them financially, it is unlikely your son or daughter could make a successful claim against your estate. Traditionally, the law allows you to leave your estate to anyone you choose. However, with any rules there are exceptions, so if you have any doubts about disinheriting a child speak to our specialists. 

It is vital to have careful legal advice and guidance, and our expert solicitors can help you minimise the risk of a dispute. We work hard to ensure our elderly clients have the peace of mind they deserve.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Parental responsibility: The key points

Families now come in all shapes and sizes, and children may live with parents who are cohabiting, married, separated or divorced. They may be part of a step-family, live with adoptive parents, grandparents, other relatives or a special guardian.

If you have spent many years living with and developing a close bond with a child, you may be concerned your ‘parental’ status is not formally recognised and you may worry you could be excluded from key decisions in the future.

David Anstee, family law expert at KWW Solicitors, explains that parental responsibility is a legal concept defined by the Children Act. “It determines all the rights, duties, powers and responsibilities and authority that a parent of a child has in relation to the child and their property,” says David.

Whoever has parental responsibility has a duty to:

  • Care for the child and provide a home
  • Ensure they receive appropriate education and medical treatment
  • Keep other parents with parental responsibility informed about such decisions.

In return, you have the right to be involved in decisions about the child’s name, where they live, which school they should go to, and whether the child can leave the country. It also means you can give permission for medical treatment and consent to the child’s marriage between the ages of 16 and 18. You can also appoint legal guardians to act in your place in your will.

“These are all sensitive and potentially contentious issues in the event of a separation or divorce,” explains David.

Who has parental responsibility?

A birth mother automatically has parental responsibility. 

A child’s father only has parental responsibility if he is married to the mother or if he is named on the child’s birth certificate when the couple is not married. 

Who can obtain parental responsibility?

A father without parental responsibility can obtain this by marrying the mother, negotiating a parental responsibility agreement with the mother, or applying to court for a parental responsibility order.

A female parent (who is not the birth mother) can acquire parental responsibility by entering into a parental responsibility agreement with the birth mother, applying to court for a parental responsibility order or by being named in a child arrangements order.

A step-parent can also obtain parental responsibility either by agreement with the birth parents or by way of a court order.

Anyone who has the benefit of a ‘live with’ child arrangements order made by the court will acquire parental responsibility but will share this with the parents.  For example, grandparents caring for a child under a live with order share parental responsibility with the child’s parents.

Adoptive parents acquire parental responsibility when an adoption order is made, at which point the birth parents lose parental responsibility.

Anyone who has a special guardianship order in their favour in respect of a child will have parental responsibility. However, this is not shared and they are able to make decisions involving the child without the permission of the parents.

For advice on parental responsibility

If you are concerned that you might not be included in key decisions regarding a child who has been part of your family for some time, it would be wise to seek legal advice. For a confidential discussion about acquiring parental responsibility, please get in touch with David Anstee using the Contact Us facility on our website.

Trustees’ duty to give information to beneficiaries

It can be flattering to be asked by a relative or close friend to be a trustee of their estate, but this is a role with important legal obligations and disputes can arise when beneficiaries do not agree with the actions of trustees. One such area of potential disagreement is the amount of information that is circulated to beneficiaries.

Karen Starkey, a specialist in Wills, trusts and probate at KWW Solicitors, explains that trustees have a duty to account to the beneficiaries and to provide information about the trust to them. “These are vital tools in the beneficiaries’ armoury when holding trustees to account, and this can be important if there is any suspicion that trustees are acting improperly,” says Karen.

A trust may be set up to protect money or property while it continues to benefit certain people (the beneficiaries). For example, a trust of property may be available for named adult children to live in, or a trust fund may pay for the beneficiaries’ university fees. The fund or property is managed by the trustees who must administer the trust in accordance with clear legal principles. 

Each trustee owes specific duties toward the beneficiaries, including the duty of good faith, to act in accordance with the trust deed and they have an obligation to account to the beneficiaries for their stewardship of trust assets.

Keeping beneficiaries informed
In discharging these legal responsibilities, as a trustee you have an important duty to keep the beneficiaries informed. The trustees must keep accounts and provide them to the beneficiaries if they ask for them, give them reasonable information about the investment and management of the trust fund and inform a beneficiary when they become entitled under the trust.

Information requests from beneficiaries
Conversely, the beneficiaries are entitled to request information to reassure them that the trust is being properly administered. However, the beneficiaries’ entitlement to information from the trustees is not unfettered and trustees do not have to comply with every request for details and information of the beneficiaries. They must have genuine reasons for seeking disclosure of information, such as holding the trustees to account or to protect their own beneficial interests.

In a recent case, Lewis and others v Tamplin, the beneficiaries made numerous requests to the trustees for information about the trust as they believed that distributions of trust money had been made to other beneficiaries but not to them. The trustees refused to respond on the basis that the beneficiaries had enough information. However, the court decided the beneficiaries had the right to disclosure as they wanted the information to hold the trustees to account – and that was a valid reason.

While the court said that the beneficiaries were entitled to disclosure of documents relating to advice sought by the trustees in relation to the trust itself and for the benefit of the trust and the beneficiaries, they were not entitled to see documents that were protected by legal professional privilege of the trustees in any other capacity. Nor can beneficiaries require the trustees to disclose information or documents to hold them account specifically for their management decisions.

Beneficiaries do not have the right to see everything, so how should you respond to a request from a beneficiary for additional information? You should consider, for example, whether they have valid reasons to see the information, if it is reasonable to supply the information requested and whether it is privileged so that they do not have the right to see it.

When information is not provided
The law allows beneficiaries to ask the court to uphold their rights by making the trustees accountable. This means if you refuse a request for information from beneficiaries, they may ask the court to order disclosure of the information. The court will not simply accept an argument that the beneficiaries already have enough information, there must be good reason in law why disclosure should be refused.

As a trustee, you need to consider requests for information and documents from beneficiaries carefully. If you are inclined to refuse a request it must be for a proper reason, otherwise there is a risk of a legal dispute. 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Lessons from widow’s fight for digital memories

A judge this week ordered Apple to give a widow access to her late husband’s online accounts which contained thousands of treasured family photographs and videos.

Unfortunately, her husband had not made a Will, and without consent regarding access to the account, the tech giant said it would release the content only under a court order. It took the widow three years and thousands of pounds in her fight to access her husband’s Apple account. It would have cost a great deal more had the lawyers not offered to work for free.

The case highlights not just the importance of making a Will but of the need to make sure your loved ones are aware of how digital accounts might be accessed if you die. “In this digital age, online accounts should be considered in the same way as savings, house deeds and heirlooms,” said Karen Starkey, private client solicitor at KWW. 

When thinking about Wills and Lasting Powers of Attorney, everyone should consider preparing a list of their usernames and passwords for their online accounts. But a word of caution: Karen points out that the terms and conditions of most internet service providers (ISPs) prohibit the transmission of such information by the account holder, and they will want to see proof of authority (such as death certificate or grant of probate) before access is permitted.

While everyone will be keen to stop bills mounting up for a dead person’s online shopping, or on their electricity or gas accounts, which are often managed online, a delay in notifying the ISPs may be advisable to prevent an automatic shutdown and deletion of some online accounts.

Popular social media channels such as Facebook, Twitter and Instagram are hard to delete without the right access, and their continued presence could prove distressing to relatives and friends. “Most of us have so many online accounts and passwords it’s difficult to remember them all,” said Karen. “Write a dossier and keep it a secure place like a locked desk or safe. That way, you not only help yourself in a moment of forgetfulness but you spare family members a major hassle trying to unravel your digital life after you’ve gone.”

Karen recommends keeping separate dossiers of usernames, e-mail addresses and passwords which can be handed to executors or attorneys as part of that person’s estate. Passwords should not be included in the Will itself, because its contents are made public after it passes probate. 

The probate process and our role

This quick-reference table explains the role of your solicitor at each of the various stages of obtaining probate. We hope this helps you to understand the process and how our expert lawyers can support you at every step of the way.

You need to…Your solicitor will…
Register the death with the local
register office.


Obtain the death certificate from
the local register office and a few
certified copies.
Locate the Will if there is one
Instruct our probate solicitor to
handle the legal work.

Provide proof of your identity.

Provide the Will and copies of
the death certificate.





Verify your identity.

Explain the probate process to you
depending on whether there is a Will,
or, if not, how the intestacy rules
apply.
Identify the executor(s) appointed
in the Will. If there is no Will, we
identify the next of kin legally
entitled to administer the estate.
Provide contact details of all
known beneficiaries.

Identify the beneficiaries entitled
under the Will or the beneficiaries
entitled under the intestacy rules.
Provide:
* details of properties
* all bank and building society
account details
* share certificates
* investments
* premium bonds
* National Savings certificates
* life insurance policies
* pension and annuity details
* details of other assets of value,
eg: antiques, paintings,
jewellery and collectables

Provide details of any debts and
liabilities.

Provide details of any lifetime
gains made by the deceased
within the past seven years.
Identify whether we will apply for
a grant of probate or letters of
administration to deal with the
estate/grant.

Contact relevant establishments for
a final valuation of bank accounts,
shares, investments etc.

Obtain valuations of property and
any valuable items as at the date
of death.

Calculate an initial value of
all assets and liabilities.
Swear a legal oath or make a
statement of truth that the
information provided is true
and correct.




Calculate any inheritance tax due.

Complete appropriate HMRC tax
forms and pay inheritance tax.

Send the probate application with the
sworn oath or statement of truth and
probate fee to the probate registry.
Place statutory notices in the
London Gazette and local papers to
alert potential creditors of our
intention to distribute the estate to
the beneficiaries.
We will give you two copies of the
grant.

Send the grant to the financial
institutions and other asset holders
and request full payment to the
assets.

Place the money into a dedicated
executor’s bank account.

Settle outstanding estate expenses,
debts and liabilities, including any
final inheritance tax due.
Advise if varying any will save
inheritance tax or otherwise benefit
the beneficiaries.
Make a bankruptcy search of the
Land Charges Register against
beneficiaries.

If a beneficiary has been declared
bankrupt, we will contact the trustee
in bankruptcy about where the
beneficiary’s inheritance should be
paid into.
If there are no challenges to the
estate, we will distribute the net
estate to the beneficiaries entitled
under the Will or intestacy rules and
obtain receipt.

If any challenges to the Will are
expected, we will advise you on the
implications.
You will approve and sign off
the final estate accounts.
Complete and file all paperwork