When considering who is legally entitled to see a Will, a short explanation can raise more questions than answers for anyone unfamiliar with certain legal terms and concepts. With this in mind, this guide aims to help you understand the roles and legal duties involved in the handling of an estate, and provide an overview of how and when it is possible to read a Will.
Who can read a Will?
In England and Wales, only Executors who have been named in the Will are entitled to read the Will unless a Grant of Probate has been issued.
Any person or organisation storing the document, such as a bank or solicitor, must therefore refuse requests to see the Will unless they have the permission of all named Executors. They can, however, provide a list of Executors to those enquiring. With permission, beneficiaries of the residue of the estate can also have sight of a copy of the Will.
Once Probate has been granted, the Will becomes a public document and individuals can apply to the Probate Registry for a copy of the Will.
What is an Executor and what are their duties?
An Executor is a person who has been named in the Will as responsible for dealing with the estate of the deceased.
The estate includes everything which was owned by the deceased, including their money, shares and personal property. If any debts were outstanding at the time of their death (such as on a credit card, for example), this money is taken out of the estate.
Anyone aged 18 and above (who has not been declared Bankrupt) can be named as an Executor even if they are a beneficiary of the Will.
People often choose a close family member, such as their spouse or children, or close friend, to act as Executor in the case of their death. There can be up to four Executors named in a Will, and it is advised that anyone writing a Will should also consider choosing a professional as an Executor either exclusively or with family or friends.
Acting as the Executor in an estate can be complicated and time-consuming, so the services of a solicitor or accountant can be helpful in providing specialist support throughout the process.
The duties of an Executor include:
- Legal duties such as identifying and resolving any valid claims against the estate.
- Administrative tasks, including contacting organisations to transfer cash, pay liabilities and correctly distribute the assets of an estate to the beneficiaries.
- Tax responsibilities, for example completing Inheritance Tax and Income Tax returns.
- Other tasks, such as ensuring that beneficiaries are kept informed and provided with certain documentation.
The Executors of a Will are legally responsible for administering the estate, both in accordance with the instructions set out in the Will and the law.
Carrying out these duties can be a daunting prospect, as it is extremely important that everything is done correctly. Executors can be held personally liable for any financial loss resulting from a breach of duty, even if the mistake was made unknowingly.
While Executors are legally entitled to see the Will, they may have to apply for a Grant of Probate in order to carry out their duties in regards to the estate, particularly in situations where money is held by an outside organisation or the deceased owned property solely in their own name.
What is a Grant of Probate?
Obtaining a Grant of Probate is often the first legal task required of an Executor.
Probate is the judicial process in which a Will is proven in court and accepted as a valid public document that represents the last testament of the deceased, and it gives Executors the legal authority to deal with the various duties inherent in their role.
Probate also means that those not named as Executors now have the right to access the Will. This can be done by using the England and Wales Probate Registry to obtain a copy by searching the records (using the deceased’s name and date of death) and paying a small fee.
Probate is not required to administer an estate in certain cases, such as where the assets are owned as joint tenants in the case of property, or jointly in the case of Bank accounts or investments. Each estate however must be considered on its own merits as different organisations have different procedures even for similar assets.
In these cases the Will remains private, and is not usually seen by anyone except those named as a beneficiary in the Will.
It should also be noted that even if Probate is granted to make the deceased’s last Will and Testament a publicly accessible document, any earlier Wills they may have created (which would have been revoked by the newer document) will remain private.
What happens if an Executor refuses to share a Will?
It is considered the duty of an Executor to inform beneficiaries of the contents of a Will, and many will happily supply a copy of the Will to beneficiaries either unprompted or upon request. However, there is no specific legal requirement for them to do so, and Executors have a wide discretion as to what information to disclose. In some cases, this can cause tension.
If you are a beneficiary of a Will, you can ask for disclosure of its contents. Executors have the right to redact information or release it with conditions attached, and may have fair reasons for doing so.
You may consider asking a solicitor to make a formal written request if the Executors of the estate have not allowed you to see the Will, and if this is ignored, it may be possible to compel the Executor into getting a Grant of Probate through a court application.
If successful, the Will would then become public - this course of action, however, is not often taken and would be considered a last resort.
For further advice on this issue, please contact a member of our Wills, Tax & Estates team. If you are an executor, our experienced team can help guide you through the probate process, or even deal with the estate on your behalf as the Executor.