What happens when someone dies without a Will?
Thu 26 May 2022
The most important document to look for when somebody dies is their Will. Sometimes, however, you might not be able to find one and this may be because they never made one. This is referred to as dying intestate. In that case, the law sets out who inherits what from the estate and who is responsible for administering it.
Eddie Bell, Solicitor in the Wills, Trusts & Probate department explains what should be done when a will cannot be found and how the intestacy rules work.
Q: Is there a valid will?
This is the most important question.
Although the deceased might have made a Will, it might not be valid. Some of the most common reasons for a Will being invalid might be:
- The deceased subsequently married or entered into a civil partnership, and the Will does not state that it is made in contemplation of that marriage or civil partnership.
- The Will states that it only deals with assets outside England and Wales. In this case, different types of asset may be treated in different ways and you should take legal advice in this regard.
- It was not signed correctly. To be valid, a Will has to be signed by the deceased (or by a person at their direction) in front of two witnesses who then sign the will in the presence of the deceased and each other.
There are other potential reasons why a Will might be invalid, such as that the deceased lacked mental capacity at the time the Will was made, or they were coerced into making it.
Testators will often just have a copy of the Will at home and store the original at a solicitors’ firm or in a safe deposit box at a bank.
Q: What if I can’t find a Will?
Before concluding that the deceased died intestate, you should be sure that there was in fact no valid Will. Just because you cannot find a Will does not mean that the deceased never made one.
As a start, you should go through the deceased’s papers to see if there is anything to suggest where the original Will is kept. This could, for instance, be a letter from a solicitor.
Some testators choose to register their Wills with Certainty, which is the closest thing that England and Wales has to a national Wills register. You should be able to contact them to obtain details of where the original Will is.
Even if the Will is not registered with Certainty, they can still carry out a search for a small fee. This involves them contacting lots of firms in the area, asking if any of them are holding the Will.
Q: Who can deal with the estate?
There is a strict order of priority for who can apply to administer the estate. This person is referred to as the administrator and they would apply to the Probate Registry for letters of administration. The terminology is different from when there is a Will (where an executor applies for a grant of probate) but the process and the responsibilities are largely the same.
The order of priority is:
- Surviving spouse/civil partner
- Children (or, if any of them died before the deceased, their children),
- Siblings (or, if any of them died before the deceased, their children),
- Half-siblings (or, if any of them died before the deceased, their children),
- Aunts and Uncles (failing which equally between their children i.e. the deceased cousins)
- Half-aunts and half-uncles (failing which equally between their children)
- Treasury Solicitor (on behalf of the Crown)
- Any creditor of the estate
This means, for example, that a child can only apply for letters of administration if the surviving spouse is also applying, or if there is no surviving spouse.
Where a child under 18 is entitled, their parent or guardian would have to apply for the grant for the child’s use and benefit.
Q: I had a power of attorney for the deceased. Can I apply for letters of administration?
The power of attorney would have ended when the deceased died, so your authority under it would have come to an end at that point. If you come under one of the categories listed above, you can apply for letters of administration in that capacity, but not in your capacity as attorney.
If it is an enduring or lasting power of attorney, this must be returned to the Office of the Public Guardian to be cancelled.
Q: What if the deceased was separated but not divorced?
The surviving spouse/civil partner still has the same entitlements to the estate as they did when they were together.
It is therefore entirely possible that the estranged spouse and/or their children could end up having to administer the estate, even if they have gone to live abroad.
Q: How do I find all the beneficiaries?
Working out who the beneficiaries actually are can be very complicated, particularly if they are estranged, or they died before the deceased with children of their own. Drawing up an accurate family tree is therefore crucial. Depending on the complexity of the family, you may need to instruct a genealogist.
You can also advertise for beneficiaries. Section 27 of the Trustee Act 1925 allows an executor/ administrator to place notices in the London Gazette and a local paper inviting any beneficiaries (or creditors) they do not know about to come forward within 2 months.
Q: What if a Will turns up later?
If you distribute the estate in accordance with the intestacy rules, and then a beneficiary turns up with the deceased’s valid Will, you could be liable for distributing the estate incorrectly.
To give you some protection, it is possible to take out missing beneficiary insurance. This would protect you in case another beneficiary comes forward. This is best done at the outset, and we would be happy to contact an insurance provider to obtain a quotation on your behalf.
This can also be useful if the deceased actually did die intestate, but there is an additional beneficiary that you did not know about, such as a long-lost child.
If you would like to discuss an intestacy, please contact Eddie Bell by clicking the ‘contact us’ button to email him direct call Eddie on 01483 670449 at our Guildford or South Croydon Office. For more information, please click here.