PROBATE

  SOLICITOR IN CHARGE: TOM FITZPATRICK

  INTESTACIES

• Mention has been made of the extra enquiries needed where there is no will.  This is because the person who died did not nominate anybody to administer the estate, or name the beneficiaries.  To fill this lacuna, the Law has appointed a strict pecking order setting out the rights of the relations to be considered for appointment as administrators and also who among them is entitled to inherit and what their shares will be.  This even stretches to creditors where the estate is likely to be insolvent.
  
  
• To set out the pecking order in a readable fashion is not possible – reading a telephone directory aloud is far more riveting.  There is no substitute for legal advice.
  
  
• What follows is by way only of guidelines to the pecking order and not as a substitute for legal advice.
  
  
  • A spouse will usually get the personal chattels, plus a cash sum which depends on the size of the estate and whether there are any children, plus, if the estate is large enough, a life interest in half of what is left, with the rest shared among the children of the person who has died; failing a spouse
  • children and, if any child has died, the children of that child and so on through the generations share the estate; failing whom
  • parents; failing whom,
  • full brothers and sisters and, if any of these have died, their children and grandchildren; failing whom
  • half brothers and half sisters benefit and so on until the list is exhausted; failing whom
  • the estate goes to the Crown, the Duchy of Cornwall or the Duchy of Lancaster.

    NOTES:  Stepchildren have no standing at all.
    Adopted children are treated the same way as blood children. 

• As a guideline for appointing Administrators, much depends on what can be agreed among the family.  Where there can be no agreement, the pecking order is much the same as that for beneficiaries, with those higher in the pecking order having the prior right to be appointed.
  
  
• At the outset, the researches which must be made cannot be quantified and, as a result, solicitors will always be cautious about setting their fees.  The extra time involved is likely to be substantial.
  
  
• What is clear is that a good family tree showing all the relevant family members will need to be drawn up, including those who have died and their spouses and descendants, with dates of births, marriages and deaths where these are known.  It will be necessary for a potential beneficiary to prove his right by obtaining relevant birth, marriage and death certificates. It may also be necessary to advertise for relations, consult a tracing agency or, as a last resort, insure against a lost beneficiary turning up.  This can be very expensive as well as time consuming, as beneficiaries may be entitled, not merely to their capital share, but also to interest on its value until they are paid, which can be a long way in the future.  If none of these works, the authority of the Court will be needed to direct the way in which the estate is distributed.  The Cautionary Point is that it is the responsibility of the Administrators to get these things right.
  
  
• This may remind you to check your own Wills