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Inheritance and Trustees’ Powers Act 2014 and its impact on intestacy law

family tree for intestacy rules 2014In most of the cases we undertake, the scope of our research is determined by fairly old legislation pertaining to the inheritance of estates: The Administration of Estates Act 1925 and the Intestates’ Estates Act 1952. Changes in twentieth century society were later reflected in the Family Law Reform Acts of 1969 and 1987, the latter, for example, furthering the rights of ‘illegitimate’ children to inherit an estate.

So, the fundamentals of intestacy legislation were decided in a very different era from our own (before all women had the vote!) and reviews are occasionally undertaken, the most recent being the Law Commission of December 2011. This commission formed the basis of the Inheritance and Trustee Powers Act, which became law in October 2014. Civil Partnerships, for example, are a relatively recent development and their status is reflected in the Act.

What does intestacy mean?

A person has died intestate if they have not left a valid will – this still applies to the majority of the population. This could mean that no will was written at all or that the will was not properly executed, for example if the will was not properly witnessed or no executor was named. It may also be the case where a will was properly executed but was invalidated by a subsequent marriage or divorce. We also regularly deal with cases of partial intestacy, where the deceased left a will which did not dispose of all of their estate. For example, a residuary beneficiary may have died or part of the estate was left to a charity or an organisation which no longer exists. In such cases, the rules of intestate succession apply to the residuary amount.

How have the Rules of Intestacy 2014 changed?

Under the Rules of Intestacy 2014 Act, if the deceased had no children, the estate would pass to their spouse or civil partner in full. Prior to the act, spouses and civil partners were entitled to a statutory legacy of £450,000 and the rest would go to the deceased’s parents (or siblings, if the parents were deceased). Where there are children, the surviving spouse or civil partner is still entitled to the first £250,000 as before, although this amount is now index linked, so would rise accordingly in future. The change with the Act is that the spouse/civil partner is now entitled to half of the residuary estate above the first £250,000 instead of only taking a life interest in half, as was the case before. This change obviously benefits the spouse/civil partner over any children, which might be considered fair but can become a source of contention, particularly in situations where the deceased’s children are from a previous marriage.

Most of our cases do not involve a surviving spouse or children (or at least none that are known to the administrating solicitor…). However, even where the entitled class of kin is distant, it is important to consider how the changes in the 2014 Act affects other previous legislation, especially the Inheritance (Provision for Family and Dependants) Act (1975), which permits certain family members and dependants to apply to the court to vary the distribution of a deceased person’s property.

Who inherits when a person dies intestate?

If somebody has died without leaving a valid will, the law of intestate succession gives priority to a surviving spouse or civil partner of the deceased, followed by blood relatives (children and their descendants, parents, siblings and their descendants, grandparents, aunts and uncles and their descendants). Half-blood siblings and aunts/uncles are considered if there are no relatives of the full-blood in that class of kin.

Professionals in the field of private client law, including probate, trusts and estate administration, are of course well aware of the pitfalls of an intestate estate. It may sound like turkeys voting for Christmas from a firm specialising in resolving intestacies but the simplest way to avoid these problems arising for loved ones after your death is to make a valid will, with the advice of an expert solicitor. However, as we know, most people still do not make a will.

Our three directors have put their heads together, pooling their collective seventy-two years of knowledge and experience as professional genealogists, to give you our top ten tips for estate administrators dealing with an intestacy.

 

The conclusion of the presentation from January and February:

replacement birth CertificatesWe now need to consider why you should use an experienced firm and not rely on amateur or part-time genealogists. Since genealogy has taken off on television, and birth, marriage and death records have been computerised, there has been a steady increase in amateurs ‘having a go’, the perception being that compiling a family tree is just a case of typing a few names into a computer. However, there are dangers with computerised records and an experienced genealogist will take account of these in their research. An established firm does not rely on internet search engines and will ensure that all their genealogists’ skills are honed by manually searching the indexes. For example, the ability to spot a slight misspelling of a name is possible when the page is in front of you but cannot always be factored into the parameters employed by a search engine.

It also remains really important for genealogists to obtain copies of birth, marriage and death certificates and probate documents. Unlike an amateur, professionals cannot rely on the memories of beneficiaries or the basic information found in genealogical databases. Certificates are essential documents which prove the entitlement of beneficiaries, confirming that they are indeed related to the deceased and not simply sharers of the same surname. Certificates also provide vital evidence that a line of the family has terminated without any living heirs. An informant on a death certificate or the witnesses to a marriage can be vital in resolving a line of the family and a will can often be invaluable in confirming the extent of kin on a stem. An experienced genealogist is able to judge which certificates are essential for research and at a cost of almost ten pounds each, this is a highly useful skill to have. They will also have dispensation to access some certificates which are restricted to the general public. Apart from all of these skills, an established firm will provide comprehensive genealogical reports with which missing beneficiary insurance can be obtained and they should also of course have their own professional indemnity insurance.

Last but by no means least, for us probate genealogy is not just about heir hunting. We are always mindful that every case involves a person who has passed away leaving family. The relationship on the family tree may appear to be distant but the personal relationship between the deceased and the beneficiary may have been close in years gone by. There is never an ideal way to convey news of the death of a relative and every situation is different, but a firm of long standing will take pride in a professional and sensitive approach.

In summary, a probate genealogist is your expert when it comes to ensuring that all of the correct entitled beneficiaries are found. We offer a variety of fee options suitable for your estate and our company ethos is to be your working partners from the outset to the conclusion, from our free and no obligation assessment of a case to assisting with the distribution account if required.

 

Continuation of Mark’s presentation from last month…

A solution where the genealogists’ fees may be an issue for the administrator is to work on a contingency basis, where any unknown beneficiaries that are traced agree a percentage fee with the genealogist. We were instructed on this basis to find heirs to an estate worth about £40,000. The solicitors’ client knew the deceased and had obtained letters of administration, however, the full extent of the family was unknown. After much work, we eventually traced over one hundred beneficiaries and the administrator’s share in the end was just 1/42 of the estate. No win-no fee contingency arrangements occasionally get criticised but the reality is virtually all probate genealogists offer to work in this way because it limits the genealogist’s fee while guaranteeing the case gets finished. Contingency not only protects the administrator’s share from genealogist’s fees; we have heard of a small estate largely consumed by the costs of genealogists who did not offer a contingency option.

In cases where there is a will, we can trace any missing legatees. A typical case may involve an elderly lady, recently deceased, who made a number of bequests to friends and family. However, her will was made in 1980 and correspondence to some of her legatees has been returned to the solicitor. It’s a classic type of case and our job here would be to establish whether the legatees have moved address or passed away, so to solve this case we would aim to either supply the solicitor with a new address or a death certificate.

We recently worked on a case where the deceased left half of his estate to “his nephews and nieces” in his will. We understand why wills are drawn up in this way since by not naming each of his siblings’ children, it includes those not born when the will was made. However, the deceased in this case had lots of siblings and the executor was not only unaware of where the nieces or nephews were but also of the extent of the family. Although we were able to gain valuable information from one of the nephews, we nevertheless had to compile a family tree and obtain a fair few certificates to establish the identity of the heirs.


To be concluded next month

 

Happy New Year from the team at Martlets!

The following is an edited transcript of the presentations given last year by our director Mark to the East Liverpool Business Forum and the Non-Contentious Committee of Liverpool Law Society:

In an ideal world, you would never need a probate genealogist. Firstly, all of your clients would have made a will. Where a will had been written, it would have been regularly reviewed to ensure that it was fully up to date. The executors would know who all of the beneficiaries are and where they live, and provisions would have been made in the event of a legatee dying. However, even with the best will in the world, family and friends disperse over the years and people pass away. And even with encouragement from a solicitor, keeping wills up to date is not a priority for many people. They after all will not be the people ultimately dealing with their estate.

So, what can a probate genealogist do for you? Primarily, we can make sure that intestate estates are properly distributed and, where there is a will, we can trace any missing beneficiaries. You will know the potential repercussions of an intestacy where next of kin are missing or the extent of the family is unclear. An estate could be sued by a beneficiary coming forward for a period of twelve years after the grant of probate, so our aim is to keep your estate non-contentious.

Aside from missing beneficiaries, another danger is to distribute to heirs who aren’t entitled. We were referred an intestate estate where the deceased had several siblings, two of whom had died leaving children who needed to be traced. We usually start any case by obtaining the birth certificates of the deceased and the people we are trying to trace and in this case, things didn’t seem quite right. In fact, we discovered that the two deceased siblings were of the half-blood, meaning that their children were not entitled and leaving us with no kin to trace! However, our work ensured that the estate was properly distributed to the deceased’s siblings of the whole blood and also spared the estate unnecessary research costs.

This case illustrates a common problem we encounter, that of a solicitor accepting the word of their client concerning the extent of a family. Unfortunately, we have assessed several cases over the years where the administrator of an estate has not authorised us to proceed with research when we advised that there were likely to be other beneficiaries entitled. Perhaps this was to avoid research costs or, slightly more cynically, so the administrator could secure a larger share of the estate for themselves. Either way, we can only make recommendations and hope that the solicitor adequately indemnified themselves from the consequences of a beneficiary coming forward in the future.

Part two to follow next month…

 

“9.15 am Heir Hunters The probate researchers reunite a family separated by wartime evacuation”.

We were pleased to read this description in the TV listings a couple of weeks ago because we feared that our role as probate researchers had been buried beneath the programme title in the public consciousness. It is understandable for the public to know us as heir hunters because of the BBC series and the show has certainly raised the profile of our profession (most people have an idea about what we do now, which was not the case when we started in the profession in the early ‘90s).

So, why are we Martlets, Probate Genealogists and not Martlets, Heir Hunters? It is for two main reasons. Firstly, prior to the TV show, we considered ‘heir hunters’ to be a title generally used by American research companies rather than British firms. Secondly, ‘heir hunters’ does not adequately encompass all that we do. Resolving intestate estates is not just about finding beneficiaries (‘hunting heirs’). It is also about thorough genealogical research and the diligent reporting of our findings; it is about proving as far as possible that the deceased had no closer kin than those claiming the estate; it is about undertaking the requisite searches and obtaining the necessary documentation to demonstrate that a line of the family has died out. It is also about a sensitive and professional approach to our cases, which we never forget concerns a person who has recently passed away.

Catchy title for a programme though it undoubtedly is, we do not think that the phrase heir hunters sufficiently describes us. And, in the same way, we trust that architects won’t start calling themselves ‘grand designers’ and restaurants continue to advertise simply for chefs and not ‘masterchefs’.

 

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