Question regarding intestacy rules.

Thankfully my mother's estate did not cause me any problems when I was Executor. I did it mostly myself but with a solicitor's advice and help where necessary.

Sorting it out is the job of the person granted probate.

These days, www.gov.uk lays out the rules I think. More difficult to find out in my mother's day!

However:-
A quick trip to a solicitor by the person with probate would settle the question - and shouldn't be too expensive. A 15 minute appointment would probably suffice.

I did see this on the web and it would seem logical - but I am NOT a solicitor. The "Generally speaking" makes me suspicious.
"Generally speaking, if a beneficiary dies before you, their gift lapses – it becomes null and void as if it never existed. Their share is then distributed as part of your estate to the remaining beneficiaries."

If a beneficiary has died with no provision for their descendants that share goes back into the pot for other beneficiaries. No others need to be considered.

As there is a legal will intestacy has not occurred

I inherited a (very small by the time it was divided up) amount from a relative of my mother.

It went:

Deceased

Children - no

Sibling - no

Father/mother -deceased

Siblings of father and mother - in my case my grandmother but there were lots more.

She was deceased - so to her child my mother

My mother deceased - so to her children me and my sister

My sister deceased- so to her son

That’s as far as our family went. As I say it was a very small amount because there were lots of relatives involved. The solicitor tracked relatives as far as possible.

David49

If a beneficiary has died with no provision for their descendants that share goes back into the pot for other beneficiaries. No others need to be considered.

As there is a legal will intestacy has not occurred

Not necessarily if the will specifies an amount or a possession like a house eg the house to my cousin Jane. £5000 to my cousin Mary, the residue to my cousin Anne (and she is now deceased) Jane and Mary can’t have the residue direct because their share has been specified.

That’s why you really need a good solicitor for writing a will!

Lathyrus3

David49

If a beneficiary has died with no provision for their descendants that share goes back into the pot for other beneficiaries. No others need to be considered.

As there is a legal will intestacy has not occurred

Not necessarily if the will specifies an amount or a possession like a house eg the house to my cousin Jane. £5000 to my cousin Mary, the residue to my cousin Anne (and she is now deceased) Jane and Mary can’t have the residue direct because their share has been specified.

That’s why you really need a good solicitor for writing a will!

The bequest not taken, or its value would form part of the residue, all sorts of anomalies turn up in wills.

David49

If a beneficiary has died with no provision for their descendants that share goes back into the pot for other beneficiaries. No others need to be considered.

As there is a legal will intestacy has not occurred

That is what we thought, but our legal advisor is now saying this isn't the case with our will.

As you rightly said, if there is no residuary clause, the quarter estate will be distributed according to the intestacy laws.

Cousins (but, if deceased, their descendants) are the remotest relatives that can inherit under the laws of intestacy. If those are exhausted, then the quarter share goes to the Crown.

These charts explain:

www.qualitysolicitors.com/charlesworthnicholl/assets/1miypykdga2o/tip-intestacyrules-quickanswerflowchart2017.pdf

cornerstonewills.co.uk/wp-content/uploads/2023/07/Intestacy-Rules-2023.pdf

In this case, you go back to the deceased parents’ siblings i.e. the deceased’s aunts and uncles and work forward to see what children they had and what child they had etc.

More information on missing or unknown beneficiaries:

www.kingsleynapley.co.uk/insights/blogs/private-client-law-blog/probate-missing-or-unknown-beneficiaries-what-should-executors-do

Silverbrooks

As you rightly said, if there is no residuary clause, the quarter estate will be distributed according to the intestacy laws.

Cousins (but, if deceased, their descendants) are the remotest relatives that can inherit under the laws of intestacy. If those are exhausted, then the quarter share goes to the Crown.

These charts explain:

www.qualitysolicitors.com/charlesworthnicholl/assets/1miypykdga2o/tip-intestacyrules-quickanswerflowchart2017.pdf

cornerstonewills.co.uk/wp-content/uploads/2023/07/Intestacy-Rules-2023.pdf

In this case, you go back to the deceased parents’ siblings i.e. the deceased’s aunts and uncles and work forward to see what children they had and what child they had etc.

Thanks, Silverbrooks.
I've just been researching this again and what I came up with matches what you have written.1

It is very annoying to know that the solicitor who drew up the will didn't add clauses to help prevent this from happening.

David49

Lathyrus3

David49

If a beneficiary has died with no provision for their descendants that share goes back into the pot for other beneficiaries. No others need to be considered.

As there is a legal will intestacy has not occurred

Not necessarily if the will specifies an amount or a possession like a house eg the house to my cousin Jane. £5000 to my cousin Mary, the residue to my cousin Anne (and she is now deceased) Jane and Mary can’t have the residue direct because their share has been specified.

That’s why you really need a good solicitor for writing a will!

The bequest not taken, or its value would form part of the residue, all sorts of anomalies turn up in wills.

Yes but the residue can’t then just be given to the two named beneficiaries where it has been specified exactly what their share is because they may not be the closest relatives and the deceased person has not said that they are to receive any of the residue.

The closest relatives to the deceased, following the pattern above, are the ones entitled to the residue. That might be Jane and Mary or it might not.

If instead of cousin I had written my friend Mary and my friend Jane it would have been clearer. They are entitled to their specified bequest but the residue, where the named beneficiary has died, must follow the laws of intestacy and go to the deceased closest living relative

You are welcome, Oldnproud.

It sounds like you can provide the executor with a lot of information from your family history research to enable them to make take the necessary reasonable steps required to indentify and locate the descendants of aunts and uncles.

The executor can then take any steps they conside necessary to protect themselves should any missing beneficiary comes forward in the future to make a claim on the estate. Ultimately it's their responsibility to undertake the searching not yours.

“If instead of cousin I had written my friend Mary and my friend Jane it would have been clearer. They are entitled to their specified bequest but the residue, where the named beneficiary has died, must follow the laws of intestacy and go to the deceased closest living relative”

So you are saying that the residue of a legal will would be declared “intestate” if no beneficiary had been named, and that would go to the nearest living relative(s),

It sounded to me, David as though those two ladies would have been included in those sharing the residue (the specified beneficiary of which has died , so no-one is named to get it) if they had not been already named as getting a specified amount.

David49

“If instead of cousin I had written my friend Mary and my friend Jane it would have been clearer. They are entitled to their specified bequest but the residue, where the named beneficiary has died, must follow the laws of intestacy and go to the deceased closest living relative”

So you are saying that the residue of a legal will would be declared “intestate” if no beneficiary had been named, and that would go to the nearest living relative(s),

Yes basically.

The devil is in the specific amount. The named beneficiaries cannot receive more than specified ( unless of course they are also beneficiaries of the intestate amount).

Assuming the will in the OPs post was divided into shares.
25% to the person mentioned who predeceased the will writer
and say
25% each to three other beneficiaries

They can only have their 25% each

The remaining 25% is an intestate amount because the will doesn’t say what should be done wth it.

Silverbrooks

You are welcome, Oldnproud.

It sounds like you can provide the executor with a lot of information from your family history research to enable them to make take the necessary reasonable steps required to indentify and locate the descendants of aunts and uncles.

The executor can then take any steps they conside necessary to protect themselves should any missing beneficiary comes forward in the future to make a claim on the estate. Ultimately it's their responsibility to undertake the searching not yours.

Even the executor had predeceased our relative, Silverbrooks, so this is already far more complicated than it should have been.
My brother is on the verge of being appointed to that role (it seemed simpler, more streamlined, just to have one person in that role), but I feel it is only fair that I do what I can to help.

Even before this latest revalation about intestacy, I felt bad about the pressure and responsibility that this is putting on him, and feel even worse now that we are realising the possible repercussions of failing to find any direct relatives who might potentially come forward with a claim on that 25% of the estate in years to come.

Five of us still stand to inherit from the will, one getting 25% and the other four 12.5%, but none of us are 'direct' descendents, so will not have any claim at all on that particular share (25%) of the money via the rules of intestacy.
I don't have a problem with that per sé, (though we are 100% certain that our relative had believed that the money in question would automatically have passed to the sons of the aunt who predeceased her') but it is very worrying that should any direct descendents come forward in years to come, we could be liable to pay them their share ourselves, even though that share will probably have gone to the Crown by then, not to us. The costs of dealing with this are also bound to reduce the amount that we eventually inherit.
That's my current understanding of it anyway, though we were oblivious of any of this until yesterday.

If nothing else, I hope that this acts as a warning to people who are blasé about the making or updating of their wills.

Lathyrus3

David49

“If instead of cousin I had written my friend Mary and my friend Jane it would have been clearer. They are entitled to their specified bequest but the residue, where the named beneficiary has died, must follow the laws of intestacy and go to the deceased closest living relative”

So you are saying that the residue of a legal will would be declared “intestate” if no beneficiary had been named, and that would go to the nearest living relative(s),

Yes basically.

The devil is in the specific amount. The named beneficiaries cannot receive more than specified ( unless of course they are also beneficiaries of the intestate amount).

Assuming the will in the OPs post was divided into shares.
25% to the person mentioned who predeceased the will writer
and say
25% each to three other beneficiaries

They can only have their 25% each

The remaining 25% is an intestate amount because the will doesn’t say what should be done wth it.

It is exactly that, Lathyrus3, though in our case it was meant to be 25% to two of the beneficiaries, one of whom has died, making that share intestate, and the two children of each of those to get 12.5% each. Because we are second cousins/second cousins 1 x removed, none of us will have a claim on that 25%.

I can see what a worry this is to you.

I understand that you might not want to do this but, personally, I would put the matter entirely in the hands of the solicitors ( who do sound as if they know what they’re doing) , make them responsible for undertaking the tracing of relatives, with your knowledge and help, but not as your responsibility.
I would also appoint them as executors. This what we did fir the relative I mentioned.

It will cost extra, but get a quote which may not be as much as you think and will be taken from the estate. If anything is challenged in the future it will be entirely their liability.

I appreciate you might not want to do this and that lots of people negotiate probate for themselves. But I do think this will sounds complicated and we thought the amount it cost was worth it to not have the worry.

I believe there is nay a six month period after probate for a challenge to be mounted but I’m not sure as my own experience is all I’ve got to go on. I’m not a solicitor🙂

Lathyrus3.
Unfortunately, I suspect it might be too late now to appoint the solicitors as executor, but will suggest checking this out.

I'm still slightly unclear how exactly where the chain of inheritance ends in reality. For instance, if we manage to find, say, just one aunt or uncle who is still alive (and are confident that the rest are dead), does that mean that person inherits the lot, or are the surviving children of all the other deceased aunt's and uncles still entitled to a share too (and so on)?
We will have a lot of questions for our legal people after the weekend!

Ask the solicitor about a 'deed of variation ". Beneficiaries of a will can use one of these to alter the will - as long as all the beneficiaries agree. It may be possible to change the will so that descendants of the deceased beneficiary can inherit.

Oldnproud with it being so complicated and the costs will be high as the solicitor sorts everything out you could end up with nothing . Especially costs relating tracking in down all relatives even with all the information you have . I know in 2020 solicitors charged £250 per hour plus VAT .Every phone call and letter is extra cost . Plus the length of time it takes to sort out . Even with wills my husband,parents and mother in law probate took 6 months .

eddiecat78

Ask the solicitor about a 'deed of variation ". Beneficiaries of a will can use one of these to alter the will - as long as all the beneficiaries agree. It may be possible to change the will so that descendants of the deceased beneficiary can inherit.

Not many beneficiaries give up a share, unless it benefits their children or other close relative, A Deed of Variation is often used to divert money from aged beneficiaries who don’t need the money to a younger generation who do.

Assuming it hasn’t already failed on the two year time limit, an attempt to execute a Deed of Variation would fail on question two of form IoV …

assets.publishing.service.gov.uk/media/5a7df4d040f0b6230268838d/IOV2.pdf

Is the variation signed by all the people whose entitlement is adversely affected?

… because you don’t know who they are yet because a quarter of the estate now in now subject to partial intestacy. The executor has an obligation to discover who the beneficiaries of the quarter estate are.

The clue to what you must do next is in your opening post:

… all her aunties and uncles have been dead for many years, as, I believe, have most or all of their children, her cousins (I found death records for all but one).

You and your brother need to follow those lines to discover who is alive among their descendants.

Let’s say the quarter estate is £120,000 and there were eight aunts and uncles. That means £15,000 each. But they are all dead. Only one child of all those people is still alive. He would inherit his parent’s £15,000. You then look at the next generation from the other seven aunts and uncles. Say they each had three grandchildren. They will each inherit a third of their aunt or uncles £15,000 share so £5,000 each.

You say you are sure the testator would have wanted the aunt’s share to pass through her line. Assuming there is one, if you can establish who the nearest surviving issue of the other aunts and uncles are, then they would have to sign the Deed of Variation agreeing to relinquish their shares under the partial intestacy so that the whole £120,000 passes to that line.

If this were me, once I had done as much leg work as I was prepared to do on the genealogy, I would arrange a meeting with the solicitors who drew up the testator’s Will. It is their failure to have included contingency/residual provisions which has caused this situation.

I’d be arguing that they sort this out pro bono and that they make provision to cover the possibliity of any future claims. They have insurance to cover this kind of thing. If it’s relatively small amount they may not quibble over accepting a remote responsibility which has arisen through their own firms poor Will drafting. Solicitors don’t like admitting they have made mistakes but it seems clear in this case that they did. You said it yourself:

It is very annoying to know that the solicitor who drew up the will didn't add clauses to help prevent this from happening.

Hmm, I think I may have unintentionally misled you by referring to my own experience which was some years ago.

I’ve been doing a bit of looking up on Google and it’s really hard to find a definitive answer to how far the line goes.

However the Co-0p website seems to give a flow chart that indicates that the line would stop at the blood aunts and uncles if the deceased and thereafter go straight to the Crown.

This didn’t happen to us. It went to my mother as an aunt, then because she was deceased to me and my sister and then because my sister was deceased, her share to her son.

Which obviously is much further on. So I don’t know if the Co-op is wrong or whether the Law has been changed.

Definitely one for the solicitors.

Thanks yet again, Silverbrooks.

You sound like you know what you are talking about, and your explanation of how far we need to follow the line of descendants is as I feared.

I will be sharing all relevant suggestions on the thread with my brother.