When somebody has passed away without a Will (died intestate) the pain of bereavement may be worsened. There is the additional stress of having to sort things out without the guidance of a Will, and different legal procedures from usual. The person has often died unexpectedly, without the chance to put financial and legal arrangements in place, leaving grieving loved ones struggling with complex practical matters.
However, many aspects of settling the affairs of somebody without a Will are clearly defined by law and there is help available. This article aims to give a brief overview of what is involved and answer some of the questions most commonly asked by those left behind.
Is there really no Will?
Do not assume that somebody has not made a Will, even when they are a very close relative or friend. A surprising number of people like to keep this private, even from their nearest and dearest. Others have made a Will themselves, by filling in a template from a stationery shop or online and following correct formalities, then either forgotten it exists or forgotten to mention it.
It is therefore imperative to look thoroughly before doing anything else. It can be very distressing if a properly executed Will turns up later after intestate estate administration has started. In the worse cases, the estate has already been distributed and people have to pay back inheritances they were given in error.
Many people store their Will in their own home. It can be practically anywhere but the first places to look are safes, filing cabinets and locked drawers. However, drawers, cupboards and boxes in every room should be searched. Kitchens, attics and even garages should not be overlooked.
If you know that the deceased had used solicitors at any point, for example for a house purchase or family matter, try contacting them. Some people still keep their Will at their bank so this is also worth a try.
It is very important to do a missing Will search. Accredited probate research companies and estate administrators offer this in collaboration with the organisation, Certainty. They will search in the various national and local databases and legal registers used by solicitors and will writers for you.
If you employ a specialist intestate estate administration company to sort everything out for you, they can carry out a missing Will search before they start other work.
Is the Will valid?
It is important to establish whether any wills that are found are legally valid. There are many reasons why a Will might be invalid, from missing signatures to subsequent marriage and lack of capacity. For details see the article: Why your Will might be invalid.
If all the wills found are invalid, the deceased is taken to have died intestate and intestate estate administration procedures must be followed, as laid down in law.
Appointment of a Personal Representative
A personal representative is a person legally responsible for settling the affairs of the person who has died. This covers all legal and financial matters, including taxes. Personal representatives named in a valid Will are known as executors. When there’s no Will the personal representative is called the Administrator.
The law is very specific about who the Administrator may be. There is a strict priority order of candidates based on how closely they are related to the deceased, starting with any surviving spouse and ending with distant relatives.
Nobody is forced to become an Administrator and it does not affect what they inherit. Often somebody further up the priority order will ask somebody lower down to act as their attorney and take on the role. In practice, family members and friends often work together rather than leaving everything to the appointed Administrator.
Before Administrators begin distributing somebody’s assets, they would usually be legally appointed. This is the intestate equivalent of obtaining probate. A PA1A form can be filled in to apply to the Probate Registry for a Grant of Letters of Administration.
The PA1A form is very detailed and some work must have been done beforehand to be able to fill it in, for example completing inheritance tax forms. At this stage a final income tax form is not required; that may be done later.
Distribution of the estate: getting it right
In the same way that the law lays down who is allowed to be the Administrator, it also specifies how the deceased person’s property must be distributed. The rules for intestate succession in England and Wales are described in detail in this article. They also apply to the excess in cases of partial intestacy, which is when a Will is valid but only disposes of part of somebody’s property, which can happen for various reasons.
Although the intestate succession rules look relatively simple, they are applied wrongly surprisingly often. There are also a number of potential pitfalls. It’s always best to seek distribution guidance for intestate estates from a professional. Sorting out an incorrect distribution later can be immensely upsetting for all involved.
The intestate succession rules are very rigid and old-fashioned. Unavoidably, some people who the deceased would have wanted to inherit do not do so. Unadopted step children and ‘common-law spouses’ get nothing whilst more distant relatives benefit. This often causes a great deal of hurt and damage to bereaved families and emphasises the benefits of making a Will.
Professional estate administrators
Some people find managing the settlement of a deceased’s affairs a comforting process that takes their minds off their loss. This is particularly true of people who deal with a lot of paperwork as part of their job and can work out what order to do things in. Some retired people also relish the challenge.
More often though, people find bouncing between solicitors, accountants, government departments and financial institutions when they are grieving hard to bear. They would rather hand the whole thing over. This is where firms that provide a full intestate estate administration service come in.
Unlike more general lawyers and accountants, specialist intestate estate administrators are used to helping people who have recently been bereaved, often unexpectedly. They sympathetically work with clients to identify a legal Administrator, fill in all the forms for the tax authorities and courts, determine the legal distribution of the estate and transfer assets to the beneficiaries.
When necessary, full intestate estate administration service providers will also trace missing relatives, find missing assets and undertake bankruptcy searches. They are used to working with pension providers, accountants, insurance companies, investment platforms, banks and building societies to liquidate and transfer the estate to the legal beneficiaries in the shortest possible time.
Using a ‘one-stop-shop’ intestate estate administrator might make the process smoother. It might well be cheaper than giving technical work to an hourly paid solicitor or accountant who is not experienced in intestacy, and having to teach yourself the rest. But settling an estate is never quick and this is something you are going to have to cope with when you might least want to do so.
Guardianship of Children
When somebody dies without a will, guardianship of a child passes automatically to the remaining parent in any of the following circumstances:
- The biological parents were married.
- The biological parents jointly registered the birth.
- A parental responsibility agreement form was filed.
- The remaining step parent legally adopted the child.
In all other cases, including when the parents are divorced and a parent with sole custody has died, and when both parents have died, the courts decide who is given guardianship. This is based on their judgement of what is in the best interests of the children. In some circumstances the courts will grant joint guardianship.
Professional estate administrators cannot usually help with matters pertaining to the guardianship of children. If difficulties arise and legal assistance is required, family law specialists will be needed.
Joe Lander is Business Development Manager for probate research firm Anglia Research.