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What Can Executors Do About Missing Beneficiaries?

It is the executor’s duty to fulfil the terms of the will, and distribute the estate as they are meant to, but what happens if they can’t find one or more of the beneficiaries who should be receiving part of the estate in question? They are under a legal obligation to take all reasonable steps to ensure that they have looked for the missing beneficiary and this includes:

Find Genealogists

Genealogists or heir hunters can be instructed to look for those who are missing if they are beneficiaries of a will. They have many different tools at their disposal to do this and, matched with their experience, they should be able to find the person you are looking for. 

Missing Beneficiary Insurance

If, in very rare instances, the missing beneficiary cannot be found even with the help of heir hunters, there is a type of insurance – missing beneficiary insurance – that can be obtained. This will need to come from specialist insurers. The executor will need to complete a detailed form that requires them to know about the estate and they need to prove that they have done what they can to trace the beneficiary. They may also have to provide a full family tree.

Apply To The Court

An executor will be able to apply to the court in order to obtain a Benjamin Order. This means that the court makes an order that distributes the court differently to what was written in the will, and it assumes that the beneficiary has died.

A CPR Part 37 Payment

If the executor prefers, he or she can make a payment to the courts under the CPR Part 37 scheme. This means that the portion of the estate that would have gone to the missing beneficiary instead goes to the courts in a trust for that person should they be found. Everyone else who is interested in or entitled in the estate or money should be informed that this has happened.

It’s Your Will… But You Still Can’t Say What You Like

There are some things that can’t – or shouldn’t – be included in a will. There are various reasons for this, some of which are legal ones, some a common sense ones, and some are simply because you cannot instruct someone to do something that is against their will (and/or against the law).

Although your last will and testament is your own personal document, allowing you to decide who will receive what from your estate, it should not necessarily be used as a way to send final messages. There are other ways to do this, including letters and notes for your solicitor.

In your will, you cannot leave a property that is in joint tenancy to someone not named on the lease. This is because when you die, the person who shares the joint tenancy with you will automatically receive your share of the property (even if your will says otherwise). The same is true for a trust, or for life insurance that has a named beneficiary – these are legal items and your will does not take precedence over them if you name someone different.

It is also a good idea not to put funeral instructions in your will. Although this might seem like the perfect place to write them down, often wills are not read until after the funeral, which is the first item to organise once a person has died. Because of this, important last wishes could be missed. Therefore, it is better to discuss with your family and friends exactly what you want at your funeral, and perhaps to leave a note with your executor so that your final goodbye will be exactly as you hoped.

Although it is possible to put conditions on bequests, if they are illegal, or if they mean that the beneficiary must marry a particular person (or divorce their current spouse), or change their religion will not be enforced. And you must bear in mind that, although you might have put these provisions on a gift (ie that the money must be used for a specific use), no one is able to ensure that this actually happens.

Arranging special care for someone through your will is not ideal. The best way to do this is through a trust, which means that the required money will be specifically set aside.

Finally, you cannot leave gifts to a pet in your will, as they are not legally able to own anything. Instead, you can ensure that you leave the care of the pet (and possibly some money with which to do it) to a specific person. A trust fund could also be used for this purpose.

Should You Choose Burial Or Cremation? Write It Down!

If you have written a will (or even – perhaps especially – if you haven’t), did you include in it any instructions about what you want to have happen to your body after you die? Did you express any particular wish about either cremation or burial (or another option) for example? If not, this might be something worth considering since not having this information can cause upset and disputes between family members when they are trying to make a decision.

Knowing how and even where to lay you to rest will save any rows at an already emotional time. But since talking about death and what comes next isn’t something everyone is comfortable talking about, writing the instructions in your will or in a separate letter to be opened in the even of your death (which is kept with your will) can help immensely.

It can come as a surprise to find that your next of kin doesn’t automatically get to choose where you are buried or cremated. That responsibility actually falls to your executors first, assuming you have a will. Without a will it will be the administrators who make the decision. If there is no one else, then it could even be the owner of the premises in which the person lived – so perhaps your landlord could choose what happens to your body. Finally, the local authority may take responsibility for you. It will all depend on your personal circumstances when you died. If you write down what you want then there will be no confusion and no arguments. It can all just be dealt with peacefully.

Why You Could Be At Risk From An Unregulated Will Industry

You may think that one company offering wills is as good as any other, but this is where mistakes can be made. There can be problems if you don’t research the company first and look at the reviews and opinion of other people who have used them. This is because the will writing industry is still unregulated (although there are calls for this to be changed) and that means that anyone can set up a company offering to prepare wills for people.

Without the experience and knowledge that is required to write a will, however, this could be a dangerous thing to do for everyone involved.

What you may not realise is that if you have a will written by an unregulated, unqualified, and probably uninsured company or individual, it could very easily be poorly drafted leading to a confusion when it is executed. It could even be negligently drafted, resulting in probate issues and fines. Plus, a disreputable will writing company will often try to sell their most expensive products, most of which are not required, taking many thousands of pounds from potentially vulnerable people.

Using a qualified solicitor can solve this problem because you will know you are getting someone to work on your will who knows exactly what they are doing and who will be able to write a will that is clear, straightforward, and can be acted upon (even if the estate is a complicated one). The problem with using solicitors is that they are expensive, and when so many other places offer such good prices… it can be hard to resist.

In the end, the choice is yours and it will depend on your budget to some extent as well as the confidence you have in your research skills in order to find a will writing company that will do a good job and that is experienced enough to know how to deal with your estate. If you feel unhappy or pressured at any time, or if the costs are not what you had thought, then step away – there are many other companies to look at.

Why You Should Review Your Will

It’s a reasonable assumption to think that once you have written a will you don’t need to think about it again, but as with many things in life, it’s always worth reviewing every now and then just to make sure it’s what you still want. In fact, there are some circumstances in which reviewing your will is absolutely essential.

New Beneficiaries

If new beneficiaries enter the picture (a new baby, perhaps, or a friend who you want to leave something to) then you will definitely need to update your will. Of course, if your will simply states that you want your estate to be divided between your children, this will generally include any born after the will is written. However, if you want something specific to go to any child (or anyone else) then you will need to add it in a revision.

You Come Into Money

If you come into money after you write your will it is a good idea to review it and make sure that it is exactly what you want, bearing your new found wealth in mind. Money can change everything, and whether that’s a good thing or not, your will may be one of the things that also needs to be changed. You might find that you can give money to more people, for example, or that you want to provide for your spouse or children differently, such as writing your estate into a trust, for example.


When you get divorced you may no longer want your ex-spouse to receive any part of your estate when you die. Alternatively, you may want to give them a certain amount of money after you pass away. In either case, you will need to update your will to reflect this.

Your Spouse Dies

If your spouse died before you do, you should update your will (assuming you wanted your estate to go to them in the event of your death). If you have written a mirror will, however, this will usually be accounted for – although it never hurts to check.

You’ve Changed Your Mind

Things sometimes happen to make people change their minds about who they are leaving items or money to in their will. A falling out or a reconciliation, for example, can both mean that your will should be reviewed and changed where necessary.

What Is A Deed of Variation?

A deed of variation is an interesting document. It is awarded when it can be proved that the testator had meant to include something or someone in his or her will but neglected to, leading to an issue between family members or other people who may have assumed that they would inherit some or all of the deceased’s estate.

It can be used as a method of post-death planning, and can in fact change the testator’s will as long as there is enough evidence. This action might be required because the intended recipient chooses not to take their part of the estate, or perhaps would rather it went to their children or grandchildren instead. It could also be used if there is a way to save on inheritance tax by awarding the estate in another way.

It is potentially a difficult document to obtain because proving that the testator made an error when they are no longer here to say yes or no is a hard burden of proof.

There are some important requirements that need to be met in order to be awarded the deed of variation (or deed of family arrangement as it can sometimes be called). Firstly, it must be completed within two years of the death of the testator. Anyone who wishes to make a variation must be under 18 (although if they are under 18 they can seek the consent of the court). It is possible to obtain more than one deed of variation within those two years after death, but each asset can only be named in one.

How To Choose An Executor For Your Will

When writing a will you may think that the most important things to include revolve around who will receive what from your estate. You might even think that your funeral arrangements are a good idea to include (although you may prefer to write this in a separate letter). But what about the executor for your will? Have you given them much thought at all?

Choosing the right executor for your will is an important element to consider; it is a specific legal duty, and shouldn’t be undertaken lightly. Don’t just pick a name at random and hope that they will be fine with the task they have been given. There are other things to think about first.

So who should you appoint as an executor for your will?

The main thing you need to consider is that you will need to appoint someone you can trust, and who is responsible. If they don’t or can’t distribute your estate in accordance with your will they can be heavily fined. In some cases they can even be imprisoned so it is an extremely serious job indeed. You can choose an individual (or individuals; you can have up to four executors if you wish), a solicitor, or a professional executor.

Something that is worth pointing out to anyone who you are considering giving the task of executor to is that they can always ask for advice if they need it. A solicitor may be able to work with them to ensure that the job is done correctly. After all, it is unlikely that many people will have been an executor more than once, or more than a very small number of times if they have done it before.

If your executor finds the job too difficult to carry out (it is hard work and takes up a lot of time, which can be an issue is they have a day job as well) they can step aside. However, if you have spoken to them about the fact that you want them to be your executor and you have given them time to do the research required to confirm that they will be happy to carry out the job, they should be able to do what they are required without any problems.

What Is The Difference Between Children and Stepchildren When It Comes To Your Will?

Although in ‘real life’ it is probable that you view your children and your stepchildren in similar (if not identical) terms, from a legal point of view they are entirely different. Stepchildren don’t have any legal rights to inherit anything from their stepparents’ estates, and unless they are specifically mentioned within your will they won’t get anything. This is even true in the case of intestacy where you die without a will. If this happens, the rules of intestacy are called into action, and there is a specific series of people to whom the estate is given. Stepchildren do not feature in that list.

Unlike biological or adopted children, stepchildren have to be mentioned by name specifically within the pages of your will. This is particularly important in these days of blended families when more and more people are combining two families into one. Without knowing these details, simply writing that you want your estate to be split between your children might, to you, include your stepchildren, but in legal terms, it would not. This would obviously case hard feeling and upset.

Of course, if you don’t want to leave anything to your stepchildren then you don’t legally have to. It is best, in this case, to write a separate letter that stays with your will pointing out that this is your intention. If you don’t it might be assumed that you made an error, and the stepchildren might, therefore, apply for an amendment to the will, or even contest it because they were expecting to receive some form of inheritance. This additional letter will make it clear that you understand what you were writing in your will and that it really is your final wish.

What Is An Agreement Of Wills?

When someone dies, it is often the case that family members can run into issues regarding how the assets are going to be distributed. Whether it is someone saying that they don’t want anything from the deceased, or the family wanting to go against the wishes of the deceased and distribute the assets how they want to do it, this kind of problem can cause arguments at a difficult time.

If the deceased’s wishes need – or are requested – to be modified after the will has been executed, then the heirs all have to enter into an Agreement of Heirs. This is a written document that must be signed by everyone involved. It acknowledges that they have a right to inherit, and sets out how the new agree inheritance will be carried out, which will be different to that written within the will.

Because this is such an important document, the best advice is that it should be drawn up by a lawyer.

An Agreement of Heirs can even be created if there is no will. If the beneficiaries of the estate don’t agree with how the rules of intestacy would divide their inheritance up, they can go to a lawyer to draw up an Agreement of Heirs to show that they have discussed the estate and agree to a different course of action.

An Agreement of Heirs makes the distribution process easier, but it does not mean that probate can be skipped. Probate will still need to be carried out if the deceased owned assets that require it, no matter how differently they are distributed from what was written in the will.

The Residence Nil Rate Band – Is Your Will Up To Date?

It was back on 6th April 2017 that an additional inheritance tax relief – the Residence Nil Rate Band – was introduced. The RNRB has reduced inheritance tax for a lot of people, but it isn’t just a case of paying less. There is more to it than that.

The RNRB comes into play when a property is left to someone’s direct descendants. It comes on top of the Nil Rate Band, which currently stands at £325,000. The RNRB adds an extra £100,000 to that sum, and it is set to rise each year in line with the consumer price index. By 2020-2021, it should have reached £175,000.

Any part of the RNRB that is not used can be transferred to the surviving spouse or partner – just like with the NRB. And that may even be the case if your partner died before 6th April 2017, although it is best to get in touch with the experts to find out exactly what your rate band is.

The RNRB will only apply to estates that are valued at under £2million.

What does this mean for your will? If you have already written one, then you will need to make sure that it makes use of the tax saving nature of RNRB. This is especially important if your will contains a trust. The trusts that the RNRB will be available on are a bare trust, a trust for a bereaved minor, an immediate post death interest trust, an 18-25 trust, and a disabled person’s trust.

Although seemingly simple, the RNRB is actually a complex provision, so it is important to speak to an expert if sure you are unsure of any aspect of it.


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