Of the many calls I receive, looking for initial advice or assistance, one of the most frequent comes from people who either know or believe themselves to be a beneficiary in a Will, and who need advice either because they feel it is taking too long for them to receive their legacy or they are not being kept informed by the executors about the progress of the Probate application..
Many of these callers are anxious because they have concluded that the executors are somehow trying to defraud them out of their inheritance.
I have therefore set out below the rights a beneficiary has, which will hopefully be of use to beneficiaries and executors alike.
When can I see a copy of the Will?
A beneficiary is only entitled to see the Will once a Grant of Probate has been issued, at which point the Will becomes a public document. An executor does have the discretion to let you see a copy of the Will before the Grant is issued, and in most cases they will do so, but they are not legally required to.
How much information does an executor need to share with me?
The executor does not legally need to share any information with you until the Grant of Probate is issued.
Once a Grant is issued, you do have the right to certain information including details of what you have been left by the deceased and are entitled to updates on the progress of the administration of the estate.
The executors must also keep accounts of the estate once money starts to come in. A beneficiary’s right to see these accounts will depend on the type of beneficiary they are. For instance if you are a residuary beneficiary (in other words a person who is entitled to a share of the deceased’s estate) then you would be entitled to see the final accounts, but if you are receiving a fixed cash sum from the estate, you would not usually be entitled to see the accounts because your inheritance is not likely to be affected by other incomings and outgoings.
When will I receive my Inheritance?
This will depend on the complexity of the estate. Even the simplest probates can take a long time to administer, particularly if the executors are not professionals and are not instructing solicitors to help them out.
An executor can’t be made to distribute an estate until one year has passed from the date of death: this is called the ‘executor’s year’. Even after this date, they can’t be forced to distribute it if there’s a good reason preventing them from doing so– for example, if they’re waiting on the sale of a property, which could take several months.
Before any legacies are paid out the executors are required to make sure that all debts of the estate are cleared, including any outstanding mortgages, loans or credit card debts, care home fees, funeral expenses and inheritance tax, otherwise they could be personally liable if they have not held back enough money to pay these.
The biggest risk for an executor comes where they have incorrectly calculated the Inheritance Tax liability on the estate, often because they have underestimated the value of the deceased’s home, or because they have made a mistake on the forms they have submitted to the revenue. If they have underestimated the amount of tax to be paid and are not able to recover that money from the beneficiaries, they will be personably liable. It is therefore important that an executor acts methodically and carefully when dealing with an estate even if this results in the beneficiaries having to wait a little longer to receive their legacy.
What can I do If I don’t like the way the executors are handling the probate process?
If you believe an executor is not carrying out their duties properly, you can apply to the Court to remove them from their role.
The Court will want to see evidence that they are not fit for the role. This may be the case if:
They’ve been convicted of a crime since they were appointed
They don’t have the physical or mental capacity to carry out their duties
There’s a conflict of interest
They’ve committed serious misconduct – such as mismanaging the estate, stealing from it, failing to keep accounting records or selling property under market value.
They are taking too long to administer the estate or are refusing to administer the estate at all, or they not keeping you sufficiently informed about their progress in the administration.
Bear in mind that the Courts will want to respect the wishes of the Testator (The person who made the Will) who appointed the executors in the first place, so the onus will be on you to justify the reasons why you think they should be removed.
Can I challenge the Will if I don’t like what is in it?
This is unconnected to your rights of a beneficiary.
Any person, regardless of whether they are a named as a beneficiary, can challenge the validity of a Will on certain limited grounds - for instance if you feel that the person who made the will (The testator), lacked metal capacity or was coerced into making it, or you believe that the Will is fraudulent, possibly because the testator’s signature has been forged.
Because the testator is not able to answer for him or herself there is a heavy burden of proof on the person making the allegation of fraud, coercion, or lack of capacity, which makes it difficult to succeed with such a claim and it can also be quite costly.
You may also wish to challenge the Will if you were a close relative of the deceased or someone who was financially dependent on them while they were alive and believe the Will does not make adequate provision for you moving forward.
There are specialist solicitors that can advise you about your rights to challenge the contents of the Will