How can I find out if a Will has been left and what happens if there is no Will?24th February 2021
It is important that your Will can easily be found when you die. Therefore, it should be kept securely, and in a location, which is known to your Executors. Otherwise, your Will may not be put into effect and your estate may well be distributed as if you had made no Will at all.
If you have made more than one Will then you need to ensure that your Executors under that Will find it before anyone presumes that your earlier, revoked Will, is your last Will.
How to find a Will
Many people who have had professional help with their Will take advantage of that organisation’s will storage service. Usually, that is a first port of call for an Executor who cannot find a Will. Usually there will be contact details for that organisation on the Will itself, and therefore on any copy of it which comes to light.
Wills are often also stored by solicitors for their clients who have used other services and therefore any firm known to have been used for any other service is a good place to look, as are other companies, such as banks, which offer safe custody services.
Some families have to resort to making enquiries of all solicitors’ practices which the deceased might have used and enquiring to all banks in the hope of finding a lost Will.
Certainty is the National Will Register which hold details of wills held by many of their member solicitors. They are also able to offer a search for all solicitors in relevant geographical areas. As solicitors are the principal professional advisors offering safe custody services for wills, this is a search which should be undertaken wherever a Will is missing or wherever there is no known Will.
What if there is no Will?
When a person dies without leaving a Will, the distribution of their estate will have to be made in accordance with the provisions of the Administration of Estates Act 1925 known colloquially as “the Intestacy Rules”. These rules also dictate who has the right to administer the estate.
Even if the person was married or in a Registered Civil Partnership at the time of their death, the Intestacy Rules will not necessarily pass the whole estate to the spouse of the Civil Partner. Depending upon the size of the estate, some may pass to the deceased’s children or grandchildren.
The size of an estate will depend on how any jointly owned property is held, as some assets may automatically pass to the other owners and not form part of the estate which complicates matters further.
If there is no surviving spouse or Civil Partner, the estate will pass to any children of the deceased, if there are any, or to grandchildren (if any). If there are no children or grandchildren, then the closest relatives are next in line starting with parents, brothers and sisters and nieces and nephews.
What is important is that a partner of the deceased who is not married to them, or in a Registered Civil Partnership with them, when they die will get nothing under the Intestacy Rules. It is also worth noting that half-brothers and half-sisters are lower down the pecking order than brothers and sisters which many people think is rather old fashioned and find the distinction both surprising and confusing.
If there really are no family members eligible to inherit under the Intestacy Rules, then the estate would pass to the Duchy of Cornwall if the deceased died in Wales or the South of England or the Duchy of Lancaster if the deceased died in the North if England.
The important point is that the Intestacy Rules may not reflect the deceased’s wishes, particularly as they make absolutely no provision for unmarried partners, friends or favourite charities. This is why everyone should make a Will and make sure that it will be found easily following their death.