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What to do when there is no Will?

20 February

What to do when there is no Will?

A Will is often referred to as a “Last Will and Testament” so someone who dies without a Will is referred to as “Intestate” (literally someone without a Testament).  Since there is no Testament to tell us what is to happen with the goods and belongings of the Intestate we have to refer to the “Rules of Intestacy”. These set out who inherits what in various circumstances and, very importantly, who is authorised to act in the estate to administer those goods and belongings. 

The starting point is that someone who stands to benefit under the Rules puts themselves forward.  The Rules establish a hierarchy who can apply and the person must explain why anyone higher up that hierarchy isn’t making the application themselves.  If the Court usually through the Administrative Branch in the Probate Registry approves them then a person or persons are appointed as Administrators of the estate (Grant of Administration).  For obvious reasons it would be preferable to have somebody personally chosen by the deceased and who is immediately authorised to deal with the estate as Executor.  In many cases an Executor will have to go through a similar process and will receive a “Grant of Probate” from the Probate Registry, however, this simply confirms the appointment and the authority to act rather than granting it.  

The Rules of Intestacy were last updated in 2014 but are still mainly contained in a 1925 Act of Parliament and would seem to be based fundamentally on a model of family life which is, today, at best, dated.  Unmarried partners, step children and half siblings have little or no rights either in terms of representing the estate or inheriting from the deceased. 

An additional challenge which often arises when dealing with an intestacy is actually finding the people who stand to inherit.  Usually in a Will a person will make gifts to people they know and their relatives but they will usually have sufficient information for those people to be traced.  Even if they use generic phrases like “my children”, or “my grandchildren”, it is usually relatively straight forward to trace these people.  If the Rules of Intestacy when applied to certain circumstances mean that someone’s cousins need to be found and by definition we have not been told by the person who has died who they are then that can pose a significant obstacle to administering the estate.   Until every possible beneficiary is found it is often not possible to even calculate what share of the estate they might be entitled to since it is not always known between how many people the estate is to be divided.  

Obviously, as Solicitors dealing with Wills and Probate we encourage everyone to make a Will, but we also have a significant amount of expertise in dealing with intestate estates and we can assist anyone embarking on what can be a very daunting task.  We can co-ordinate and deal with finding potential beneficiaries, identifying the assets in the estate, making the necessary HM Revenue & Customs Returns and the application for the Grant and distributing the estate.  We can provide initial advice to people who find that a loved one died without making a Will so that they can decide how best to proceed. 

Contact us on: 0114 249 5969. 

Charles Neal - Partner | Head of Private Client & Notary Public