Blended families – what to consider when making your will

If you have a blended family, making a will is an important opportunity to put clear and effective arrangements in place for your loved ones. You may wish to balance the needs of your current spouse or partner with the needs of your children from an earlier relationship, while also ensuring that your estate ultimately passes in line with your wishes. Without careful planning, even well-intentioned arrangements can lead to unintended outcomes and, in some cases, costly and distressing disputes.

‘Inheritance planning for a blended family often involves more detailed thought and planning than people expect,’ says Lucy Brown, head of the private client team. ‘Simple wills that leave everything to a spouse or partner, and then to children, do not always work well for modern family arrangements – particularly where there are children from previous relationships or a long-term partner to provide for.’

Lucy highlights the key issues you should consider when making a will for a blended family.

Providing for your partner and your children

One of the most common challenges is deciding how to provide adequately for your surviving spouse or partner, while also protecting the interests of your children from an earlier relationship.

You may feel that leaving everything outright to your partner is the simplest solution, particularly if you trust them to provide for your children later. While this approach works for some families, it carries significant risks. Once assets pass outright, your partner will have complete control and can spend, gift or redirect those assets as they see fit.

This can be problematic if:

  • your main asset is the family home;
  • your children are still young or financially dependent;
  • relationships between your partner and your children are strained; or
  • your partner remarries or enters a new long-term relationship.

In these situations, your children could be unintentionally disinherited, even if that was never your intention.

Using trusts to strike the right balance

Trusts are often a key feature of wills for blended families, as they allow you to retain greater control over how your estate is used and who ultimately benefits.

A life interest trust (sometimes called an ‘interest in possession’ trust) can allow your surviving spouse or partner to live in the family home or receive income from your estate during their lifetime, while ensuring that the capital ultimately passes to other beneficiaries, usually your children. This structure can provide security and stability for your partner, while reassuring your children that their inheritance has been protected.

In other situations, a discretionary trust may be more appropriate. This gives your trustees flexibility to decide how and when assets are distributed, taking into account changing circumstances such as financial need, health issues, relationship breakdowns or tax considerations.

It is important to take advice when considering trusts, as different types of trust can have very different tax consequences. The inheritance tax, capital gains tax and income tax treatment can vary depending on the trust structure used and on your personal circumstances. Whether you are married or in a civil partnership, as opposed to cohabiting, can also be highly relevant, particularly when considering available tax exemptions and reliefs.

In many cases, a trust is the most practical way to help you balance competing interests, protect vulnerable beneficiaries, and reduce the risk of conflict later.

Protecting your children’s inheritance

If you have children from a previous relationship, you may be particularly concerned about ensuring that they ultimately receive the inheritance you intend for them.

Without appropriate planning, assets can easily pass outside your family line. For example, if your partner inherits assets outright and later remarries, those assets may pass under their own will to a new spouse or stepfamily, rather than to your children.

Trusts, combined with careful drafting, can help ensure that your children inherit at the appropriate time, while still allowing your partner to be supported during their lifetime.

You should also consider assets that may fall outside your will altogether, such as pensions, life insurance policies and jointly owned property. These arrangements should be reviewed alongside your will to ensure they align with your overall estate planning objectives.

Inheritance Act claims and the risk of disputes

Wills involving blended families can be more susceptible to challenge after death.

Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals may be able to bring a claim if they believe your will (or the rules of intestacy) does not make reasonable financial provision for them. This may include:

  • your spouse or civil partner;
  • a former spouse who has not remarried;
  • a cohabiting partner;
  • your children (including, in some circumstances, adult children); or
  • anyone who was financially dependent on you.

If expectations are unclear, or if provision appears unequal, disputes can arise and these claims can be expensive, time-consuming and emotionally draining for your family.

Clear drafting, realistic provision and careful consideration of potential claims can significantly reduce the risk of a successful challenge. Supporting documents, such as a letter of wishes, can also play an important role.

Keeping your will under regular review and the role of a letter of wishes

Keeping your will under regular review is particularly important if you have a blended family, as your personal and financial circumstances may change over time.

Marriage automatically revokes an existing will unless it was made in contemplation of that marriage. Divorce does not revoke a will, but it generally treats a former spouse as having died for inheritance purposes, which can lead to unintended consequences if your will is not reviewed. New relationships, stepchildren, changes in wealth, or the purchase or sale of property can all affect whether your will remains appropriate.

Alongside a well-drafted will, a letter of wishes can be an extremely helpful supporting document.

A letter of wishes is not legally binding, but it allows you to explain in your own words why you have made certain decisions in your will. This can be valuable if your estate is not divided equally, or if you have included trusts that give executors or trustees discretion over how assets are applied.

For example, your letter of wishes might explain:

  • why your partner has been given the right to remain in the family home;
  • why your children from an earlier relationship will inherit at a later stage;
  • why different children have received different levels of provision; or
  • how you would like your trustees to balance competing needs if circumstances change.

Letters of wishes can also give practical guidance to executors and trustees, helping them exercise their powers in line with your intentions. Importantly, they can usually be updated more easily than a will, making them a flexible way to reflect changes in your family dynamics or priorities without needing to redraft the will itself.

How we can help

We regularly advise clients on wills and trust structures tailored to a blended family. We can help you think through different scenarios, identify potential risks, and put clear, robust arrangements in place to reflect your wishes.

Our aim is to help you plan with confidence. With the right advice, you can protect your partner, provide fairly for your children, and significantly reduce the risk of disputes in the future.

For advice on making or reviewing a will for a blended family, please contact Lucy Brown, head of the private client team on 0191 297 0011 or by email at whitley.bay@kiddspoorlaw.com.

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.

The risks of using an unqualified will writer

Making a will is one of the most important steps you can take to protect your family and ensure your wishes are carried out after your death. Yet the quality of the will itself is vital.  A document that is poorly drafted or unclear can create confusion, spark a dispute, and leave loved ones facing unnecessary stress and expense.

Recent court cases, including Tedford v Clarke & Ors [2025] EWHC 816 (Ch), have highlighted the dangers of relying on an unqualified will writer, and this case shows why expert legal advice is so important.

As Lucy Brown, head of the private client team, explains: ‘When you instruct a solicitor to draft your will, you know they are properly trained, regulated, and insured. With an unqualified will writer, you simply do not have those protections – and unfortunately, as the Tedford case shows, the consequences can be very damaging for families.’

No formal qualification is needed to prepare a will – you can even draft one yourself. However, wills are governed by a complex body of legislation and case law, and what seems straightforward can easily give rise to hidden pitfalls, disputes, or unintended tax consequences.

Some will-writing services are offered by individuals who are not solicitors and who may not be supervised by one. Such will writers sometimes rely on template clauses and may have limited training within a narrow field. Unlike solicitors, they are not necessarily regulated by a professional body and may not be subject to an independent complaints process if things go wrong.

While some will writers do carry professional indemnity insurance, this is not always the case which means there is no guarantee of financial protection if mistakes are made. The key difference is accountability: with a solicitor, there is always the reassurance of professional oversight, insurance, and a regulator to turn to if problems emerge.

The Tedford case; a judicial warning

In Tedford v Clarke & Ors the High Court had to examine a will, which contained a series of critical errors that created ambiguity and omissions, in order to determine how the estate should be distributed.

Numerous clauses in the will were unclear, for example:

  • The testator wanted to leave her savings account with Abbey National Bank to her siblings. However, Abbey National Bank had become Santander before the will was signed, which meant the court had to determine if the gift failed or whether the Santander account was included.
  • The testator held several savings accounts, but the will only referred to the one account with Abbey National Bank. So, the court had to determine if the money held in only one of the savings accounts would pass to her siblings or whether the clause included all of her savings accounts.
  • There was ambiguity around the use of the word ‘surviving’ in the will and some of the will maker’s siblings had already died (before the testator) leaving their children, so the court had to decide whether those children should inherit in their parents’ place.
  • The will also included a general gift of ‘my estate’ to a named beneficiary, even though specific assets had already been given elsewhere. The court had to decide whether ‘my estate’ should be given its ordinary meaning (all the testator’s property) or a narrower meaning (to take into account the gift of specific assets).

Because of the lack of clarity, the family had to bring a Part 8 claim asking the court to interpret the will. The court examined evidence to try to discern the testator’s likely intentions, but this came at significant financial and emotional cost to the family.

The judge noted that the errors had directly caused the dispute, saying the will was prepared by an ‘apparently unqualified person holding himself out as a will writer perhaps for money’’ and that this ‘case demonstrates the perils of trying to save expense by using the services of unqualified persons to write wills’.

The Tedford case illustrates the dangers of cutting corners in will preparation. A will is not just a formality: it is a legally binding document that demands legal expertise, careful structuring and precise wording.

The risks in practice

The Tedford case shows how easily ambiguity can creep into a poorly drafted will. When instructions are not captured clearly, or when legal formalities are overlooked, your wishes may not be fulfilled as you intended. Sometimes a will can even be declared invalid, leaving your estate to be distributed under the intestacy rules rather than in line with your wishes.

Unclear wording also opens the door to a family dispute. Instead of a smooth process at an already difficult time, relatives may find themselves drawn into disagreements that escalate into costly and stressful litigation. At a moment when families need certainty and support, ambiguity in a will can make matters far worse.

There are financial consequences too. Without proper legal advice, important tax planning opportunities can easily be missed. This can leave families with a larger inheritance tax bill than necessary, eroding the value of the estate and depriving loved ones of assets that could have been preserved.

Perhaps the most troubling risk can be the lack of accountability. A solicitor is regulated and insured, which means there are safeguards in place if problems occur. For an unqualified will writer, there may be no independent body to complain to and no guarantee that compensation will be available. You may be left exposed at precisely the moment when protection is most needed.

Why a solicitor makes the difference

Choosing a solicitor ensures that your will is drafted with both legal precision, experience and practical foresight. A solicitor is trained to spot potential issues, whether that involves family circumstances that could cause conflict, vulnerable beneficiaries who need special protection, pitfalls to avoid or tax considerations that might otherwise be overlooked.

Every solicitor is also bound by professional obligations, regulated by the Solicitors Regulation Authority, and insured to protect clients if problems do arise. As part of these obligations, solicitors must keep their knowledge up to date through continuing professional development (CPD). This means they are required to maintain and refresh their legal skills, including staying aware of developments in case law and legislation, so that clients can be advised with confidence that the guidance reflects current law and best practice.

This combination of expertise, accountability, and protection gives you confidence that your wishes will be respected and your family safeguarded.

A well-drafted will is not just about dividing assets; it is about minimising the risk of dispute, ensuring tax efficiency, and providing peace of mind. By choosing a solicitor, you are making sure your estate is handled smoothly and in line with your intentions.

How we can help

Our private client team is experienced in advising on all aspects of wills and estate planning. We take the time to understand your family circumstances and prepare a will that reflects your wishes clearly and effectively. We ensure that your estate is structured in a way that reduces risk, minimises the chance of disputes, and provides certainty for those you leave behind. We can also support your executors and family when the time comes, helping them navigate the process with confidence and clarity.

For expert advice about making or updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or by email at whitley.bay@kiddspoorlaw.com.

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 – careful planning needed with estranged relatives

Family relationships can be complicated, and estrangement is sadly more common than many realise. Whether the breakdown is the result of a long-standing family rift, a more recent dispute, or simply growing apart over time, such estrangements can have significant legal consequences – particularly when it comes to making or updating your will.

It is a common misconception that you can leave your estate to whomever you choose, without consequences. While English law does support testamentary freedom, that freedom is not absolute. If a close family member, such as an estranged child or spouse, is excluded or left with little provision, they may still be able to challenge your will after your death.

‘When someone comes to us to make a will, it is important to understand their individual circumstances and objectives. If a close relative is estranged, we treat that as a clear indicator to take additional care in drafting their will and supporting documentation,’ explains Lucy Brown, head of the private client team. ‘With the right approach, you can ensure your wishes are carried out while minimising the risk of a dispute or litigation for those you leave behind.’

Why estrangement matters in will planning

Where there is an estrangement, emotions often run high – both during life and after death. A will that excludes, or provides only minimal provision for, a close family member is more likely to be challenged, particularly under the Inheritance (Provision for Family and Dependants) Act 1975.

This law allows certain individuals to apply to the court for reasonable financial provision from your estate, regardless of what your will says. Those eligible to claim include spouses, civil partners, cohabiting partners, children (including adult children), and others who were financially dependent on you at the time of your death.

Estranged adult children are increasingly bringing claims against their parents’ estates, especially when the will appears to favour siblings or charities. For example, in the case of Ilott v Mitson, a disinherited daughter succeeded in her claim for provision despite a decades-long estrangement, highlighting just how complex such claims can be.

Whatever the outcome, your executors would need to deal with the claim and related costs, and this could impact on what other relatives eventually receive.

Recording your wishes – and your reasoning

If you intend to exclude someone from your will, or limit what they are to receive, it is not enough to simply state this in the will itself. To reduce the risk of a successful challenge, your intentions and reasoning should be clearly documented.

A supporting letter of wishes is often a vital tool. This is a confidential document (not legally binding) that can be used to explain:

  • the nature of your relationship with the estranged person;
  • the history of the estrangement, including when and how it arose;
  • your reasons for excluding or limiting provision for them;
  • any financial support already given during your lifetime; and
  • confirmation that you have considered their circumstances but still believe your decision is appropriate.

The letter should be signed and dated, ideally with legal advice. It can be a crucial piece of evidence if your will is ever contested, helping your executors or the court understand your wishes and the rationale behind them.

In particularly sensitive cases, we may also advise making a formal written statement or statutory declaration, prepared with the benefit of legal advice and retained on file in support of your testamentary choices.

Using discretionary trusts and other strategies

In some cases, it may be possible to structure your will to help reduce the risk of a successful claim while still reflecting your wishes.

A common approach is the use of a discretionary trust. Rather than leaving fixed amounts to individuals, you name a group of potential beneficiaries – which may or may not include the estranged person – and give your trustees the discretion to decide who receives what, when, and how much.

This structure offers:

  • flexibility in managing complex family dynamics;
  • greater control through your chosen trustees; and
  • a degree of protection, as the estranged person is not automatically excluded and has no fixed entitlement.

A separate letter of wishes can guide your trustees on how you would like the trust to be administered.

However, it is important to understand that a discretionary trust within your will still forms part of your estate. This means it remains open to challenge under the Inheritance (Provision for Family and Dependants) Act 1975, just like any other part of your will.

Lifetime planning to reduce risk

To reduce the likelihood of a successful claim – or to remove certain assets from the reach of a claim entirely – lifetime planning may be advisable. By making arrangements while you are alive, you may be able to reduce the size of your estate and limit the assets available for redistribution after your death.

Examples include:

  • making lifetime gifts to those you wish to benefit most;
  • setting up a lifetime trust to hold assets outside your estate;
  • using life insurance policies written in trust, which pay out directly to beneficiaries; or
  • restructuring property ownership to avoid unintended consequences.

These approaches can offer additional security – but they must be handled with care. Under legislation, the court has the power to treat certain lifetime transfers or trusts as part of the estate when assessing a claim. This means that even assets given away or settled during your lifetime could, in some cases, be brought back into account if the court believes they were transferred to avoid a claim or defeat reasonable financial provision.

Each situation is unique and requires tailored legal advice.

Avoiding conflict and minimising risk

No will is ever completely safe from the risk of a challenge, particularly where there are eligible individuals who may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, there are practical steps you can take to reduce the chances of a successful challenge and protect your executors and beneficiaries from costly litigation.  These include:

  • obtaining a full assessment of your legal position before drafting or amending your will;
  • having your testamentary capacity assessed and documented, especially if the estrangement or your decision may be controversial;
  • ensuring your will is correctly signed and witnessed;
  • appointing professional or impartial executors, particularly if there are likely to be disputes within the family; and
  • communicating your intentions to your chosen executors in advance, so they are prepared to manage any fallout after your death.

Regular reviews of your will are essential. If your relationship with an estranged relative changes, or if their personal circumstances shift (such as becoming financially dependent), you may need to update your will and any supporting documents. In particular, the letter of wishes should be reviewed and amended as needed. If they contain outdated or incorrect details at the time of your death, they can undermine your intentions and even strengthen a challenge, becoming a double-edged sword rather than a protective measure.

How we can help

Planning your will when you are estranged from a family member requires thoughtful legal advice, careful drafting, and attention to detail. Our experienced team can help you:

  • draft a will that reflects your wishes while minimising legal risk;
  • prepare supporting documents that explain and justify your decisions;
  • advise on the use of discretionary trusts or lifetime planning options;
  • provide clear, confidential guidance tailored to your family situation; and
  • support your executors in defending any future claim if needed.

We regularly assist clients in navigating the difficult intersection of family conflict and estate planning. With sensitivity and expertise, we can help you achieve peace of mind knowing that your affairs are in order.

For expert advice about making or updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com.

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.

Client appreciation for Lucy

Our newest member to the Private Client team, Lucy Brown is already proving a hit with our clients, receiving a lovely card and box of chocolates.

On this occasion, it was an existing client of our firm who Lucy dealt with for the first time. The client required some specific assistance in relation to his status as a beneficiary of an estate being dealt with outside of the firm.  He was grateful for the assistance, support and reassurance Lucy was able to provide, so he popped into the office with a card and some chocolates.

At Kidd & Spoor, we are committed to providing a personal service to our clients. If you are looking for support and advice on wills, probate or estate administration, then our expert private client team are here to help on 0191 297 0011 or whitley.bay@kiddspoorlaw.com

 

Five Common Mistakes to Avoid When Divorcing – and How to Minimise Cost and Stress

Going through a separation or divorce is often emotionally challenging and can quickly become expensive. While it’s rarely possible to avoid all costs or complications, there are practical steps you can take to reduce unnecessary expense and help things progress more smoothly.

Below are five common mistakes we see during divorce proceedings – and how to avoid them.

  1. Not checking if you qualify for help with court fees

Although legal aid is rarely available for solicitors’ fees in divorce cases, you may still be able to get help with the court fee for issuing the divorce application.

The current fee to apply for a divorce is £593, which must be paid at the start of proceedings. However, if you receive certain benefits or have a low income, you might qualify for a fee remission (reduction or exemption). You can check your eligibility using the government’s Help with Fees service.

  1. Not taking legal advice on financial orders

Even if you and your ex-partner reach an agreement on finances, it is essential to get legal advice – particularly if your assets are more complex.

Courts are increasingly rejecting financial consent orders that do not reflect full financial disclosure or appear to favour one party unfairly. A judge may reject an order if they believe the agreement does not meet the required legal standards, which could mean having to renegotiate the terms later on.

Proper legal advice ensures your consent order is more likely to be approved the first time – saving time, money, and stress.

  1. Overlooking the need for a financial consent order

While the no-fault divorce process has made it easier to end a marriage, it does not automatically deal with financial matters. Without a financial consent order, your financial ties remain open, even after the divorce is finalised.

A financial consent order sets out how assets such as property, savings, pensions, and maintenance are divided. Once approved by the court, it becomes legally binding and prevents future claims – potentially many years after the divorce.

Skipping this step can leave both parties vulnerable to future disputes.

  1. Ignoring the importance of pensions

Pensions are often one of the largest assets in a marriage, yet they are frequently overlooked during financial negotiations.

A proper valuation of each party’s pensions should be included in the financial disclosure process. Depending on the circumstances, pensions can be shared (by transferring a portion of one party’s pension to the other) or offset against other assets, such as the family home.

Getting specialist advice on pensions can help ensure a fair settlement.

  1. Not updating your will after divorce

It is always wise to review your will after major life changes – including divorce. Research from Solicitors for the Elderly suggests that almost half of UK wills may be out of date following significant family or financial events.

While divorce does not automatically revoke a will, your former spouse will usually be treated as if they have died for inheritance purposes. This means any role they had as an executor or beneficiary will no longer apply, unless you expressly include them in a new will.

Also consider the position of step-children or other beneficiaries who may be affected by your change in circumstances.

How Kidd and Spoor Solicitors can help

At Kidd and Spoor Solicitors, we understand how emotionally, and financially difficult divorce can be. Our experienced family law team, led by Trevor Gay and supported by Trainee Solicitor Kennedy Smart, is here to guide you through every step – ensuring your rights are protected and helping you move forward with confidence.

If you would like to speak with a member of our team, please contact us on 0191 297 0011 or visit our website at www.kiddspoorlaw.co.uk.

Codicils: how to use them and pitfalls to avoid

A codicil can be a convenient way to update your will without needing to rewrite it entirely. However, it is crucial to use them carefully to avoid creating confusion or invalidating your will.

‘Codicils can be useful for minor updates, but they must be executed correctly to avoid unintended consequences,’ explains Lucy Brown, head of wills and probate. ‘Even small errors can create ambiguity or disputes, so getting legal advice is essential to ensure your wishes are carried out properly. This will ensure that your intentions are clear and legally enforceable, protecting your estate and beneficiaries.’

What is a codicil?

A codicil is a legal document used to make amendments to an existing will. Rather than drafting an entirely new will, a codicil allows you to make specific changes while keeping the original will intact. It must be signed and witnessed in the same way as a will to be legally valid. Codicils can range from simple modifications, such as updating an executor, to more complex changes affecting multiple clauses in a will.

Codicils are particularly useful when you wish to make minor updates without the time and cost involved in drafting a completely new will.

When to use a codicil

Codicils are most appropriate for minor changes, such as:

  • updating executors or trustees;
  • changing a beneficiary’s name (e.g., due to marriage or divorce);
  • making small gifts or legacies; or
  • adjusting funeral wishes.

For more substantial changes – such as altering how the bulk of your estate is distributed, modifying residuary beneficiaries, or adding complex trust structures – it is usually better to create a new will to avoid complications.

Best practices when using a codicil

To minimise risks when using a codicil:

  • ensure that it is signed and witnessed correctly, just like a will;
  • clearly reference the original will by date, to avoid confusion;
  • store the codicil securely alongside the original will to prevent separation;
  • keep the number of codicils to a minimum to avoid inconsistencies;
  • seek legal advice to confirm that the changes do not create unintended consequences; and
  • regularly review your will and codicils to ensure they remain relevant and enforceable.

Pitfalls of using a codicil

While codicils can be a practical way to update a will, they come with risks which include:

  • inconsistencies – multiple codicils can create confusion or contradict the original will, making it difficult to interpret your true intentions.  In particular, later codicils may fail to reference all previous codicils, leading to inconsistencies. Over time, this can result in provisions that do not properly align, creating a risk of ambiguity or even invalidity if contradictions arise. The more codicils that exist, the greater the risk of them failing to dovetail together, which can complicate the probate process and increase the chances of a dispute.
  • revocation of will terms – if a codicil is not carefully worded or cross referenced properly, it may unintentionally override key provisions of the will.
  • risk of a dispute – unclear or improperly executed codicils can increase the likelihood of a legal challenge, particularly if beneficiaries feel disadvantaged.
  • storage and safe custody issues – if a codicil is stored separately from the original will, there is a risk that it may not be found or considered during probate. If the will and codicil are mistakenly filed in separate places and only the will is located, the codicil may be overlooked. This could lead to an outdated will being administered, resulting in a loved one’s final wishes not being followed and a potential legal challenge.

Alternatives to codicils

In some cases, drafting a new will may be more effective than using a codicil. A new will:

  • avoids confusion caused by multiple documents;
  • ensures clarity and consistency in estate distribution;
  • revokes all previous wills and codicils, reducing the risk of a dispute;
  • allows a comprehensive review of all provisions to reflect current intentions and legal considerations; and
  • provides an opportunity to fully reflect any changes in tax laws or personal circumstances that may impact your estate plan.

If you are making significant changes, particularly to the main beneficiaries or overall distribution of your estate, a fresh will is usually the best option.

How we can help

Our experienced team can help you:

  • determine whether a codicil is suitable for your needs or if a new will is advisable;
  • draft and execute codicils correctly to ensure they are legally binding;
  • review your estate planning regularly to keep your will up to date;
  • prevent potential disputes by ensuring clear and precise wording in your documents;
  • arrange safe and secure storage for your will and codicils to ensure they are properly considered during probate; and
  • provide comprehensive advice on how changes in tax and estate laws may impact your wishes.

For expert advice on updating your will, contact Lucy Brown in our private client team on 0191 297 0011 or via email at whitley.bay@kiddspoorlaw.com

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.

What are an executor’s duties towards a missing beneficiary?

As an executor or administrator of an estate, your duty extends beyond merely distributing assets; it includes the responsibility to use all reasonable means to locate missing beneficiaries.  If the missing beneficiary turned up after you had wrongly distributed their £50,000 inheritance, you could find yourself personally on the hook to the extent of their loss.

‘In order to fulfil your duties to administer the estate properly, it is imperative to exhaust every possible avenue to find a missing beneficiary,’ says Lucy Brown head of the wills and probate team.  ‘We can guide you through this complex process, ensuring that all reasonable steps are taken and that you are protected from any potential legal repercussions.’

In this article, Lucy highlights some of the issues involved in an estate where a beneficiary cannot be located.

While beneficiaries may go missing for a variety of reasons, common scenarios include lack of contact over many years, relocation without providing new contact details, and estrangement from the deceased person.

It is particularly common in cases where there is no will, as the intestacy rules dictate how a deceased person’s estate is distributed.  For example, if someone has died without any close family and they did not know their more distant relatives who would be eligible to receive a share of the estate. These distant relatives may be more difficult to trace, but the duty of the executor or administrator of an estate remains the same.

Legal implications of a missing beneficiary

Executors and administrators have an important duty (sometimes called a fiduciary duty) towards all the beneficiaries of an estate, whether named in a will or entitled under the intestacy rules.

Failing to locate a missing beneficiary can lead to significant legal implications, including personal liability for distributing assets incorrectly. You may be held accountable for any financial loss suffered by a missing beneficiary due to an incorrect distribution.

When do you need to locate beneficiaries?

You need to make reasonable efforts to locate all beneficiaries as soon as possible.  This is so that they can be informed of the terms of the will, what the estate comprises in terms of assets and liabilities and who is dealing with the estate administration.  If no attempts to locate beneficiaries are made at the outset, it may leave insufficient time to locate them when the estate should ordinarily be finalised.

How can you locate a missing beneficiary?

If no response to any initial communications is received, more thorough attempts to locate the beneficiary need to begin.  You have several options, and the choice will depend on the facts of the particular case, the wording of the will (including whether it contains a trust), the circumstances of the other beneficiaries and the likelihood of eventually finding the missing beneficiary.

 Some of the options open to you include the following:

Consulting the will file: if a separate firm prepared the will of the person who died, consider asking for a copy of the will instructions given to the solicitor to see if the person may have left any contact details for the beneficiary. They may also have provided other useful information such as how they knew them, where they may have worked or even details of their social media.

Contacting relevant people: if you have established contact with some but not all beneficiaries of the estate, some of them may be able to help.  Alternatively, friends, family members or former colleagues of the deceased person may have current contact details.

Social media:  it may be appropriate to look for the beneficiary via social media accounts, such as Facebook or LinkedIn, so that you can pursue other methods of contact.

Search public records: electoral registers, birth, marriage and death records can provide valuable information as to what may have happened to the missing beneficiary.

Using professional tracing services: these services specialise in locating missing people and can be highly effective.  This is particularly useful in intestacies, and genealogy companies have many resources at their disposal to find beneficiaries.  Some have a worldwide network which allows the company to establish if, for example, the beneficiary may have emigrated to a different country.

Finalising an estate when a beneficiary is unable to be located

If, despite all exhaustive attempts to find them, a beneficiary still cannot be found, this may be due to various reasons, such as immigration or a name change.  Sound legal advice will ensure that you take all reasonable steps to find a missing beneficiary and can safeguard your personal liability for any financial loss caused by an inaccurate distribution.

Some of the options open to you at this stage include the following:

Holding funds: you can set aside the entitlement for the missing beneficiary in an executors’ account.  If the beneficiary is then located in the future, they can claim their inheritance.  This can be unsatisfactory in that it does not allow the estate to be finalised in a timely manner and can impose long term obligations on you, as an executor or administrator.

Paying other beneficiaries: alternatively, you can distribute the amount due to the missing beneficiary to the other beneficiaries, subject to a legally binding commitment that if the missing beneficiary emerges later, the other beneficiaries will repay the amount.  All beneficiaries (except the missing one) must approve this approach.  This can be a risky approach especially if you have little knowledge as to the financial position of each beneficiary.

Missing beneficiary insurance: this is a type of insurance which provides coverage for you in the event that a missing beneficiary comes forward after the estate has been distributed.  It can cover the financial loss associated with paying the beneficiary’s share and any legal costs incurred.  This can offer peace of mind and financial protection after you have made exhaustive efforts to locate beneficiary without success.

The court: for maximum protection, you can seek court intervention.  The court may issue what is called a ‘Benjamin Order’ which allows you to distribute the estate on the assumption that the missing beneficiary has died. This court order protects the executor from any liability if the beneficiary later comes forward.   The downside to this approach is that it can be an expensive exercise.

How we can help

It is important to remember that each case is unique, and legal advice should be sought to determine the best course of action.

Our private client solicitors offer comprehensive support including sound legal advice to ensure you fulfil your fiduciary duties and avoid personal liability.  We collaborate with expert tracing agents to locate missing beneficiaries efficiently and can facilitate introductions to those who can advise on missing beneficiary insurance to protect you against potential future claims.  We could also make a court application for a Benjamin Order (or another court order) where appropriate.

By engaging our services, you can confidently fulfil your role as an executor, knowing you have taken all reasonable steps to locate and provide for all beneficiaries of the estate.

For further information, please contact Lucy Brown in the wills and probate team on 0191 297 0011 or email whitley.bay@kiddspoorlaw.com

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.