When you don’t want the world to know

Author: Helena Luckhurst

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The death of L’Wren Scott aged 49 in March 2014 made headline news but the contents of her will (leaving everything to Sir Mick and specifically nothing to her adoptive family) were equally well publicised.

Gone are the days when wills are read out by the family solicitor in front of a gathered assembly of family members – that only happens in the movies! However, here in England, a will often becomes a public document, available for all to see, if it is necessary to obtain a grant of probate. That’s the legal document that unlocks the key to a deceased’s person’s assets when they are held by financial institutions such as banks and investment houses, or a property. Usually there is at least one asset that requires a grant of probate.

If you don’t want the press or your family to know to whom you are leaving your assets or in what proportions, what can you do? With a bit of planning, a lot is possible:

  • Think about writing a will that incorporates a discretionary trust, coupled with a power for the trustees (who are responsible for running it) to add to the class of beneficiaries of the trust after your death. You could name uncontroversial people among the class of beneficiaries – these will be visible to all once the will is made public. However, in a separate letter of wishes addressed to the will trustees, which is a private document that need not be disclosed after death, tell your will trustees who you would also like to benefit from your assets and ask them to add those persons to the class of beneficiaries. This will pave the way for distributions to be made to them but no one need know. You need to name some very trustworthy trustees for this task as your letter of wishes cannot be made legally binding on them. Professional trustees come in useful here.
  • If even the appearance of a trust in your will is too much information for the outside world, have your will provide for all your assets to pour over into a pre-existing trust that you created while you were alive. The terms of that trust will remain private, so no one will be aware of even the identity of your beneficiaries or who gets what.

Even if you don’t want the world to know your business, it’s worth noting that, under English law, if L’Wren hadn’t made a will in Sir Mick’s favour, he would not have inherited any of her estate. If you are not married to your partner and want them to inherit something from you after your death, you must make a will in order to make it happen. However, do it right and you need not waive your privacy by doing so.

Helena Luckhurst, Partner, Fladgate LLP (hluckhurst@fladgate.com)

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