3 June 2021
Where an individual does not leave a Will on their death, this causes uncertainty about who their estate should pass to and, quite often, their estate may end up passing to individuals the deceased does not wish it to go to, or does not even know about.
Under the laws of intestacy (which are the statutory rules which govern to whom your estate should pass in the event that you do not leave a Will), the deceased’s estate will pass to their closest living relatives. Where the deceased did not leave a surviving spouse, their estate will pass to their children. For many people, it is quite clear who their children are and therefore easy to ascertain those who are entitled to their estate.
However, what is the position if it is not known who the children of the deceased are? Or indeed, whether they had any children? This is not only relevant for the purposes of deciding who should benefit from the estate, but also who has the right to administer the estate, as under an intestacy, the individual/s entitled to deal with the estate are usually the same as those entitled to take in the estate. As the rules of intestacy entitle all the biological children of the deceased to inherit, it is important that all of the children of the deceased are identified and located, and not simply only those children who had a relationship with the deceased or those children whom the deceased knew about. It will therefore be important for the family or friends of the deceased to take certain steps to ensure that all efforts have been exhausted to establish who is entitled to inherit.
If there are any doubts about whether the deceased had any children, how many children they had or their whereabouts, then the first step to take would be to consult a genealogist. They will undertake searches about the deceased and whether there are any details which may suggest the existence or whereabouts of a child. However, this is not always conclusive. For example, a mother will always be named on a birth certificate, but there is no guarantee the father will be. If the child had not been given the father’s name, there is very little evidence which would link the two, and that child may not appear on any relevant searches.
The estate should then take the step of placing statutory notices in the London Gazette and local paper. These would inform the public of the deceased’s death, so that if anyone believed they may have a claim, they have the requisite details to make themselves known to the estate and have their position considered. The estate should also consider taking out Missing Beneficiary Insurance. This would protect the administrators so that if a beneficiary came along in the future that the administrators had not been able to locate or find out about, they could claim on the insurance rather than be personally liable. The costs of the insurance would be an estate expense, and would depend on the steps the administrators had already taken, the value of the estate and the remoteness of a claim being made.
If insurance is unavailable, then the final recourse would be to go to the court to ask for permission either to distribute funds to the beneficiaries which have been located, or to pay money into the court (representing the sums due to a beneficiary who cannot be found). This would enable the administrators to complete the administration of the estate and should the beneficiary come forward at a later date, they can claim directly from the court. This can, however, be costly and time consuming and therefore is often a last resort in many cases.
Finally, it should be noted that missing beneficiaries do not only arise on an intestacy. They can arise where someone has made a Will but the particular individuals named in the Will cannot be found. For example, a testator may leave their estate to their children, but, on their death, the executors learn that the deceased had another child no-one else knew about. The executors will need to take all reasonable steps in locating the other child before they can administer the estate, as this other child will be equally entitled to the estate. It is therefore important, when drafting an individual’s Will, that the testator understands everyone who would inherit under the terms of their Will and the implications of drafting their Will in a particular manner.
The implications of missing beneficiaries can therefore be important. It can cause significant delay to the administration of the estate, as well as costing potentially thousands of pounds to identify and locate the beneficiaries. However, it can also cause emotional stress for the family, who have to come to terms with the fact that their loved one had other family which they had not known about, and this in and of itself can cause further delays and difficulties in dealing with the administration of the estate. It is therefore advisable for people to make a Will in order to ensure that their estate passes on to the family members they would want to inherit, and to avoid their estate passing to potentially unknown family members or those with whom the deceased did not have a relationship with.
For further information please contact Rhiannon Russell or another member of the Private Client Advisory Team.
This article is from the spring / summer 2021 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2021.