Navigating the complexities of genealogical research and intestacy can be challenging, with many common misconceptions about the laws, processes, and costs involved. In this blog, we debunk some widespread myths surrounding intestacy and probate genealogy, helping you understand the facts.
One frequent misconception is that fostering and adoption are treated the same under intestacy laws. However, unless an individual was legally adopted into the family, they are not entitled to inherit from the estate. While informal fostering was common in the early 20th century, these individuals do not influence estate distribution. This issue often arises when tracing family trees that extend to aunts and uncles born in the late 19th or early 20th century, where documentation can be scarce.
Legal adoption was not recognised in England and Wales until 1927, and in Scotland, not until 1930. Proving legal adoption can be challenging, as finding all relevant certificates is often difficult. Conversely, proving that someone was adopted out of a family is somewhat easier since birth certificates are annotated to reflect the adoption.
Another common myth is that unmarried partners, often referred to under the misnomer "common law marriages," have a legal right to an intestate estate. This is not true. Common law marriages have no legal standing in England and Wales, regardless of how long the couple lived together. Unmarried partners can, however, make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, provided they meet certain criteria.
When common law marriages are mentioned during our research, it signals to us that a marriage certificate might not exist, prompting us to explore other methods to identify potential heirs from the relationship.
Blended families introduce additional complexities into estate distribution under intestacy. Many assume that stepchildren are entitled to inherit, but only biological or legally adopted children (including illegitimate children) qualify. Similarly, if the deceased's closest relatives are siblings, full siblings inherit first. Half-siblings only inherit if no full siblings exist.
Divorced spouses have no claim under intestacy rules, but separated spouses do unless a legal divorce (Decree Absolute) is finalised. This often leads to confusion and potential disputes.
Do second cousins inherit on intestacy? In England and Wales, second cousins are often mistaken for first cousins once removed. It’s important to note that second cousins are not entitled under English and Welsh intestacy laws, but they may be under Scottish rules.
1. Documentation of Events Is Unnecessary
Some believe that documenting events such as births, marriages, and deaths is unnecessary in genealogical research. However, thorough documentation is crucial to building an accurate family tree and avoiding the risk of estate misdistribution. Failing to document these events can leave the estate and Personal Representatives exposed to legal claims.
Our extensive research often uncovers additional information that could have been missed without proper documentation. For example, informants on death certificates might reveal previously unknown children, or marriage certificates might disclose earlier marriages and offspring that were not previously known.
In one case, we discovered that the deceased’s father had a son from a previous marriage, who was still alive and entitled to the estate. Without proper documentation, the estate would have been distributed incorrectly.
When dealing with intestate estates and missing beneficiaries, it’s essential to work with experienced probate genealogists. Legal professionals should thoroughly vet genealogists by asking about their processes, pricing, and experience.
With over 50 years of experience in genealogy, we have the expertise to handle even the most complex intestate estates. Our services include:
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