For the purposes of this article, we will assume you’re reading this as the executor of a will. However, the information remains relevant and correct if you’re not the executor but want to know more about the will reading process when someone dies.
One of the first things to check when a person dies is to determine if they had a will. If they did, the named executor(s) would read its content immediately. But contrary to what the movies and TV shows tell us, there is no need to gather everyone around to do so. Reading the will is more of a process where you ensure you fulfil the deceased person's wishes.
Aside from those surrounding Inheritance Tax (IHT), there are no legal timeline restrictions to follow. It is a legal requirement to pay any IHT liabilities to HMRC within six months of the person’s death. After obtaining the death certificate, reading the will and getting a grant of probate, if you need one, is vital to starting the process of settling the estate. Once you have the death certificate, you can usually access the deceased's bank accounts.
Let's examine what responsibilities executors have towards beneficiaries.
Does everyone have a legal right to access the will if they ask?
Who can read a will?
The scenes in movies and TV shows where everyone is huddled together for the “reading of the will” generally don’t happen in real life. Only one person is legally obliged to read the will: the executor.
An executor is the person in charge of the estate administration. When writing a will, you should appoint an executor. While you don't have to ask the person's permission to make them an executor, it is good estate planning practice to do so.
So, the executor won't have to show the will to anyone else, including beneficiaries of a will. They can do so, but they're not legally required at this stage.
When can all beneficiaries see a will?
Whether beneficiaries can see the will depends on whether you need a grant of probate. If so, the will becomes a public document once the grant of probate is issued. Beneficiaries can then apply to obtain a copy of a will. A copy of the will is available from the Probate Registry in England and Wales.
If you don’t require a probate, the will remains private, and it is the executor’s courtesy to decide if they’ll show the contents of the will to beneficiaries and the next of kin.
But what if a beneficiary suspects the executor is not carrying out their legal duties? Then they have a few options. Let's look at the different situations:
What if an executor fails to apply for the probate?
If the executor fails to apply for the probate, a beneficiary or a next of kin can ask the court to intervene. The court can ask someone else to administer the will and move things forward.
Beneficiaries can register a citation with the court if the executor fails to comply. At this stage, the executor must apply for the grant of probate. If an executor still refuses to do so, a beneficiary or a next of kin can write to the court. They can then remove the executor and appoint a new one. Usually, they’ll appoint a neutral third party to act as the executor.
What if an executor is not performing their duties?
If beneficiaries believe an executor isn’t performing their duties, they can request an account of what the executor has done so far. The account should detail what the executor has done to settle the estate.
Ultimately, beneficiaries can challenge the executor and take things to court. Courts tend to favour following the deceased person's wishes. After all, the deceased did name the person to perform these duties.
But courts will examine if you have enough proof there are serious issues. In that case, courts can remove an executor and appoint a new one.
What if there are multiple executors?
A will can have multiple executors, but only up to four can be granted probate. When there are multiple executors, they can act on their own or as a group. The vital thing to know is that the actions of one are deemed to be an act of all of them, except when dealing with land. However, actions should be discussed between all executors.
Now, other executors or beneficiaries can ask to remove executors. The process is similar to when there is only a single executor. You can challenge the executor or executors in court. The courts can remove one or all executors and appoint a new one. If only one executor is removed, no new one is selected in their place.
Who can apply for probate?
It depends on whether there is a will. If the deceased had a will, then an executor makes the application. But if there was no will, then the closest living relative is the one who should apply.
You don't always need a probate, regardless of if there is a will. If you have a small estate (assets are below £5,000), you might not need one. Banks can also release assets from accounts with less than £50,000 without a grant of probate.
You typically don't need to have probate if the deceased:
- Only had savings.
- Owned shares or money with others, as these pass to the surviving owners unless otherwise agreed.
- Owned land or property as 'joint tenants' with someone else, as it will pass to those owners.
You must find out if you need to pay Inheritance Tax before you apply for probate. You'll need to calculate the estate's value and include this in the application. Once you know the estate's value, you can apply for probate online or by post.
Can anyone contest a will?
You can only contest a person's will if you have a vested interest in it. The person could be a spouse, child, partner, or someone expressly mentioned in the will.
If and when the will becomes public, anyone can see if it reflects the deceased's final wishes. Sometimes, beneficiaries may question the will's validity. If they do, they can contest the will.
When can you contest a will?
A will is a valid legal document if it is in writing, signed by the testator and with the intention that the will is valid, and at least two witnesses must acknowledge the signature. Without these, the will is not valid. However, you may also contest a will if you have valid proof to show that:
- The will is not the original will, or it's forged.
- The deceased was coerced to write the will.
- They weren't sound of mind when writing the will.
- There was a clerical error that needs to be rectified.
How do you contest a will?
If you're unhappy with a will's validity, you should contact a solicitor for legal advice. They can help you understand if your claim is valid. If it is, you can make a claim and submit it to the Probate Registry office. The clearing of the estate will halt until you resolve the dispute.
As an executor of the will, dealing with beneficiaries can add extra pressure to the process. You should keep a clear record of everything you've done. If beneficiaries contact you, provide them with your account. It should clear any complaints if you can show you're dealing with things as required.
When is a will read?
The time after a loved one's death is never easy. But time doesn't stop, and things need sorting out. But, unlike in the movies, you don't wait until the funeral to read a will; it should be read at the earliest opportunity.