After death, there is often a need for your Personal Representatives to apply to the Probate Registry for a Grant of Representation. The Grant confirms the Personal Representatives’ authority to administer the estate which is needed to collect in, sell or transfer most assets. However, few people are aware that any Will, Codicil and other testamentary documents are retained by the Probate Registry and become a matter of public record once the Grant is issued.
The Principal Probate Registry retains a copy of every Will, Codicil and other testamentary documents upon which a Grant has been obtained (“proven”) in England or Wales since 1858 (including copies of Grants of Letters of Administration i.e. Grants issued in estates where the deceased died without a Will).
You may have seen in the news recently that the Duke of Edinburgh's Will shall be shielded from disclosure and retained as a private record for at least 90 years https://www.bbc.co.uk/news/uk-58587147. This has been tradition for senior members of the Royal family for many generations and is said to ‘protect the private aspect of their lives, including other family members’ named in the Will.
For those of us in society who do not have senior royals title we do not have the same protection, and once your Will has been proven and probate has been granted, our testamentary wishes are available for anyone (yes including Joe Bloggs) to see, upon request.
With this mind, it may make you think more carefully about the contents of your Will and how your estate will be distributed on your death. Discretionary Will Trusts are used for many reasons but have the added benefit of shielding your specific feelings and wishes, by including them in an accompanying File Note. The File Note remains a confidential document and would not need to be proved with your Will, and therefore would remain out of the public eye, whilst still providing clear and detailed wishes to your Personal Representatives.
Discretionary Will Trusts are used in a variety of reasons primarily because of their asset protection benefits, particularly if there are potential family issues including concerns about the age, character or vulnerability of a beneficiary (e.g. alcohol/substance abuse). The Personal Representatives are usually also Trustees of the Discretionary Will Trust and are able to consider the circumstances at the time of your passing and make informed decisions as to how and when the estate is to be distributed and who it should be distributed to, based on the wishes detailed in the accompanying File Note, allowing a much more versatile, flexible and pragmatic approach than a standard Will.
Often Codicils are used to amend Wills, before death, which can be a useful tool where small amendments are required (such as changing Personal Representatives or amending the gift of personal chattels) rather than having to go to the expense of putting in place a new Will. However, Codicils should be used with caution for a number of reasons. It should always be borne in mind that both the original Will and any Codicils become a matter of public record when proven. As such we do not recommend the use of Codicils when changing who inherits and how, as it could give rise to ill feeling, family fallouts and claims against the estate once you have passed away – not the legacy you want to leave!
It goes without saying that a Will is probably the most important document you will put in place during your lifetime, regardless of your family circumstances and the size and nature of your estate. However, it is very important to take appropriate professional advice on the drafting of your Will to ensure it is properly constructed, the Inheritance Tax implications have been considered, the Will is validly executed and to minimise, where possible, the risk of claims against the estate once you have passed away.