We've had a number of people recently come to the office asking for help concerning a letter they've received from HSBC about a Will they hold. The letter from HSBC has come as a big shock to many people and a timely reminder to many that they should review their Wills.
The letter explains that following a sale by HSBC of their Wills and Probate business to Simplify Channel Limited they have to consider what should happen to their Wills.
This is especially important for those who have appointed HSBC as executors of their Will. These people have been given the following options:
- Sign a pre-populated form (called a codicil) which makes SIMPLIFY the executor in place of HSBC
- Confirm their old Will is no longer valid
It seems some people have been given time limits to act as well but this may vary.
Clients I've seen about this have often completely forgotten they appointed HSBC as executor and why they did. Unfortunately in such cases it seems very difficult for clients to find out from HSBC further information about their Will and more information on the options available.
Although HSBC's letter is quite unusual the problems caused by inappropriate executors are common and can be expensive. If you have received such a letter or if you're generally checking your Will is up to date, you may find considering the following points helpful:
- Consider whether you need a professional (e.g. accountant / solicitor) executor at all. If you have a simple (e.g. no discretionary trusts) Will and a straightforward estate with no special beneficiary considerations (e.g. no step-children, disabled/vulnerable beneficiaries, beneficiaries who do not get on(!) or otherwise inappropriate to act) you may not need a professional executor. Bear in mind that your executors can instruct a solicitor if specialist advice is needed after your death.
- If you ever receive a pre-populated codicil, as in this HSBC case, we would always recommend advice is taken before it is executed. If nobody has actually checked your original Will there can be no guarantee it will fit your circumstances.
- If you do make a new Will consider whether a copy of the old one should be kept (but marked clearly that it is revoked). Keeping a history of old revoked Wills can be very important in some cases and this can be a complex area. If you are changing your Will greatly or disinheriting someone you have previously maintained or someone who is/was close to you it is vital to get advice - the recent Ilott -v- Mitson case highlighted this.
- If you are appointing a professional executor make sure you understand how they will charge for their time. Information should be provided and although providing a cost estimate would be unlikely (they won't know what you will own when you die!) they will be able to explain the basis of charging. Some professional executors will charge a percentage of the estate value, others (Berwins included) will either charge on an hourly rate or a fixed fee basis. Are the charges of the professional executor regulated in some way and what happens if their service is poor or something goes wrong - are they regulated and subject to a formal ombudsman complaint process?
- Consider how well you know the professional executor and how that relationship will change. Are you appointing an individual - in which case what happens if they die or retire, or are you appointing a firm (appointments of a company are sometimes referred to as a trust corporation). Will your other executors/beneficiaries be able to meet the professional - how accessible are they?
Finally, one final and often overlooked point is to remind your executors where your Will is kept. Any professional drafting your Will will be delighted to hand you any number of business cards!