Mitigating risk on intestacy: Distribution examples and complex case studies

When someone dies without a Will, the consequences can add additional stress to the Deceased’s loved ones at a time that is already difficult. When administering an intestate estate, legal professionals may come across complexities and delays, but there are steps that can be taken to make the process run more smoothly.

How intestacies arise

The most common cause of intestacy is the Deceased not leaving a Will behind. In these instances, a Personal Representative will need to be assigned before the estate can be dealt with and the next of kin will then need establishing.

There are also cases of partial intestacy, where a Will has been left but is incomplete or invalid in some way. This can result from the individual passing away before completing their Will or having it witnessed, or issues with the validity of the Will.

There can also be problems when class gifts are left; if the Deceased has left a portion of their estate to a class of family without naming specific individuals (for example, “children” or “grandchildren”), their identities must be verified before these gifts can be distributed.

Why does intestacy increase risk?

Naturally, an estate is more straightforward to administer when a Will and clear instructions have been left by the Testator. When estate planning documents are not present, legal professionals should be aware of the associated risks.

Some of the risks associated with intestacy include:

• Later discovery of a Will that instructs distribution which is different from the intestacy rules

• Claims could be made from an unmarried partner, stepchild, etc.

• Blended and more complex families could lead to entitled people coming forward later in the process, proving misdistribution

• Missing or estranged beneficiaries may be difficult to track down, leading to uncertainty about whether the correct people have inherited

How can Personal Representatives and beneficiaries be protected?

There are several ways in which to protect Personal Representatives and beneficiaries in intestacy cases. Relying on family information is a major risk as individuals can be mistaken or uninformed about their own relatives due to the complex nature of relationships. It is important to make sure that clients are covered if a claim is made on the estate after distribution; Personal Representatives are liable for any portion of the estate that is paid incorrectly.

Family tree verification

If you’re dealing with an intestate estate and have already been presented with a family tree, it’s still best practice to get this professionally verified. Family relationships can be complicated and if a beneficiary is mistakenly identified or missed, this can lead to further issues down the line and a claim made against the estate.

By instructing Title Research to verify your clients’ family trees, Personal Representatives can be protected from future liability if a previously unknown beneficiary comes forward.

Our expert genealogy team will check a family tree for accuracy by:

• Documenting any events of birth, marriage, death, or adoption that have not already been obtained

• Carrying out confirmatory searches of the birth and marriage indices

• Interviewing all potential heirs to ensure that the information is correct and up to date

Click here to learn more about how our experienced genealogy team checks family trees.

Missing Beneficiary Indemnity Insurance

To further protect Personal Representatives and beneficiaries, Missing Beneficiary Indemnity Insurance can be acquired. This cover allows the estate administration process to continue as if the missing beneficiary has predeceased, which gives your clients peace of mind that there will be no issues if a claim is made after distribution.

Steps to take to ensure you know whether there’s a Will

Even if the family of the Deceased insists there is no Will, it’s best practice to take some precautions. If a Will is discovered after an estate has been distributed as an intestacy, further claims could become contentious and cause more issues.

To ensure that the individual has indeed died intestate:

• Search the property

• Ask as many family members and friends as possible

• Consider a professional Will search; Title Research can search the Certainty National Will Register, place a notification on the Missing Wills Register, and contact Solicitors local to the Deceased

• If no Will is discovered, we can arrange Missing Will Insurance to provide you and your client with peace of mind should a Will be discovered at a later date

Changing distribution upon intestacy

Distribution upon intestacy can be complicated due to the changing nature of family relationships.

In the following examples, we are looking at the £100,000 estate of a full-blood uncle:

Example one

The four cousins are the sole beneficiaries, receiving £25,000 each. Emily is the daughter of Jane and is not entitled.

Example two

If Jane’s daughter from the previous example was legally adopted by Jane’s parents, she would now be entitled. The four cousins and Emily are entitled and would receive £20,000 each.

To summarise, if Jane has a daughter, she is not entitled. If Jane’s daughter was legally adopted by Jane’s parents, she would now be entitled. However, if Emily was raised as Jane’s sister, but not adopted legally, she would not receive anything.

Until recently it was quite common for children to be brought up alongside their parents due to illegitimate births. Sometimes they were unaware of the truth, so cases like this are surprisingly common.

Difficult intestacy case studies

Case study 1: Cousin Joyce

We were asked to reconstruct the paternal side of the family tree on intestacy. We advised that it would be safest to also look into the maternal side of the family, but our client was adamant no one would be discovered. We proceeded with our research and were ready to distribute just before Christmas, when a card was received and signed by an unknown “Cousin Joyce”. Watch the video below to find out what happened next:

Case study 2: The badly advised bigamist

Our Solicitor client instructed us to find the beneficiaries of an intestate estate; 38 first cousins and first cousins once removed were located. However, we were working under the assumption that the Deceased was unmarried and when we searched for the Decree Absolute, a different story unfolded. Find out what we discovered by watching our short video:

 

How Title Research can help your clients with intestacy

There are many genealogy providers on the market. It is important for you to ensure they can provide insurance for your clients, and you should also consider how percentage fees can cause contentious cases. Click here to learn more about the advantages and disadvantages of the three main approaches to genealogy fees: contingency, time and expense, and fixed.

If genealogy work is carried out incorrectly it may not be approved for insurance. Title Research has been contacted many times to rectify cases where we needed to repeat work, have found additional beneficiaries, and charged less than a third of the fees of the original provider. Read our recent blog on the pitfalls of amateur genealogy.

Our costs are upfront, avoiding delays further down the line when unexpected costs arise. We aim to be as honest and direct as possible, helping you to retain strong relationships with your clients by resolving cases openly and efficiently.

Title Research is an expert in genealogical research with an excellent success rate for locating missing beneficiaries and tracing thousands of missing people every year. If you would like to discuss how Title Research can help you with intestate estates, call our Client Services Team on 0345 87 27 600 or fill in the form below.

 

Topics: Intestacy, Family tree verification, Missing Beneficiaries, Missing Beneficiary Insurance