Guest Blog Post from Kim Rawlings-Smith of HiveRisk – Deceased Estates
This issue comes up time and time again in our roles as compliance consultants, so we felt it was worth a mention to clarify the situation.
Who is a Client
Taking it back to basics, when dealing with natural persons as clients, i.e. the likes of you or me, at any given time the client must be someone who can give instructions, either directly or through someone who has authority whilst they are still alive, such as under a Lasting Power of Attorney.
Where a client dies (‘the deceased client’), to point out the obvious, they are no longer able to give direct instructions. Also, any authority, such as a Lasting Power of Attorney, ceases to exist upon the death of the deceased client.
Who Becomes the Client where the Original Client Passes?
Who, then, becomes the client on behalf of the deceased client?
- Where there is a properly executed Will: the Executor(s)
- Where the client has died intestate, i.e. there is no properly executed Will, and the estate is being administered: the Administrator(s)
In other circumstances, where there is no Will and Letters of Administration are not being obtained in the intestate estate, there are various possibilities as to who then becomes the client on behalf of the deceased client. We would always advise clarifying with your estate planning team or other legal advisor, as various vehicles of appointment of a client to represent the deceased client are available, depending on the circumstances. We do not intend to cover those options in this blog, just merely raise your awareness to the fact.
Naming the File
This then brings us on to the matter which causes us compliance consultants no end of headaches: the file for the deceased client cannot be in the name of the deceased client; the file must be in the name of the person(s) giving instructions on behalf of the deceased client’s estate, for example:
- Mr John Doe (Deceased);
- The Estate of the Late Mr John Doe;
- The Executors in the Estate of the Late Mr John Doe;
- Mrs Jane Doe as Executor in the Estate of the Late Mr John Doe;
If the Estate later needs to sue someone, to recover funds owed to the Estate for the purpose of administration of funds, the litigators can advise in the name of the claimant in any claim; it is worth noting that the litigators may need their file(s) setting up differently to other teams to reflect the correct name for the issue of any claim. Ideally all file names would be the same, but we do recognise that different teams work in different ways.
What’s the Issue?
Why, then, is this an issue? It’s all down to correct file identification and correct client identification, who is alive, who has passed, who has authority to instruct you with regards this matter, identification to be obtained with regards due diligence procedures, especially where there is more than one person appointed.
It also helps when corresponding with the client; too often where files are opened in the deceased clients name, but as the client, are letters written to the deceased client causing no end of upset to relatives and it doesn’t put you in a good light at all, writing to a deceased client asking for instructions. Yes, we’ve seen it, not just once, but time and time again; it’s something that can be easily avoided.
Case Management Systems
We see a lot of different case management systems and we recognise that they are not usually set up for deceased clients. However, workarounds can always be found, naming deceased client files can be agreed across firms and departments and file opening procedures and due diligence processes amended to reflect the same.
All We Ask
All we ask is where there is a deceased client file, this is recognised and the file is properly named. It’s amazing how what is seemingly such a small detail can have such a huge impact.
Any queries about this at all, we’re here to help!
Thank you to Kim Rawlings-Smith, Consultant at HiveRisk.
HiveRisk are a boutique risk management consultancy focusing on strategy, compliance & innovation for law firms and verticals operating and launching in the legal services sector. Learn more about them and their services here.