The Gazette, the official public record, and Certainty, the National Will Register, recently began a strategic working alliance, offering a comprehensive, belt and braces approach to risk management when distributing an estate.
Section 27 of the Trustee Act 1925 enables trustees or personal representatives to protect themselves from liability against any claims from creditors and/or beneficiaries that they have not had any notice of at the time that they convey or distribute the property in question, provided that the notice placed complies with the requirements of that section.
This includes, among other things:
• advertising the intention to convey or distribute the property through a notice placed in The Gazette and a local newspaper (where the property is land)
• setting out a period of at least 2 months for any interested person to send the particulars of their claim to the trustee or personal representative
Though it is not a legal requirement, any trustee or personal representative placing a notice in accordance with section 27 will not be liable to any such creditors or beneficiaries.
A Certainty will search is a precursor to the Section 27 notice, in that it seeks to ensure that the correct will is being administered, or to establish that there is most likely not a will in an assumed intestacy situation. This is done by searching for registered wills, and nationally for wills that have not been registered.
The rationale behind the Gazette and Certainty working together is that Certainty will searches and Section 27 notices complement each other, but do not substitute each other.
Tom Dumont, barrister at Radcliffe Chambers, explains: “Section 27(2)(b) says that nothing in section 27 frees the PRs [personal representatives] from any obligation to make searches similar to those which an intending purchaser would be advised to make. Clearly, a Certainty will search should be done right at the beginning of the estate administration process, so as to verify you are proceeding with the correct will; or alternatively, that there is a will.
“Time and expense will inevitably be saved in this way… a Section 27 notice does not remove the requirement to do a will search, the two procedures serve different purposes, but work effectively and comprehensively to guard against risk. They represent a best practice approach to managing risk.”
Certainty research shows that 90% of solicitors who placed a Section 27 notice did so when they were the professional executor. But the placing of Section 27 notices should apply equally, and be recommended to lay personal representatives.