COVID-19 Q&A | Sintons | Wills, Trusts & Estates
During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.
Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.
Q – I have lost a family member to COVID-19 very suddenly, and we did not get the opportunity to establish whether they made a will. How do we establish whether a will is in place and what do we do if one does not exist?
A – | Unfortunately, there is no definitive place to search to establish whether a person made a will before they died. Family members are often required to undertake a lot of investigative work to establish whether there is a will. Nevertheless, it is important that these steps are taken. If an estate is incorrectly administered on the assumption that there was no will, the administrators could potentially be found to be in contempt of court.
As a starting point, ask your family members whether they think the deceased made a will. A will is a document which many people prefer to keep private, and there is certainly no obligation to tell people if they are mentioned in a will or not. Nonetheless, many people tell at least one family member that they have made a will, especially if that person has been appointed as executor. They may have information as to where the will is held.
The next step is to conduct a thorough search of the person’s home and anywhere else they might keep personal documents such as a relative’s house or their place of work. You may find the will itself or, more likely, a copy of the will.
Next, you should establish whether your family member used a solicitor to make a will. Look for any letters from a solicitor which may relate to a will or anything else such as the sale of a house. Very often clients will use a firm of solicitors for multiple services, so check with them if they do hold a will even if this is not mentioned in correspondence. You may also wish to check the deceased’s purse or wallet, as they may keep a card specifying where the will is held.
If you cannot find the name of the solicitors in the deceased’s paperwork, you may wish to contact firms in the area where they lived to enquire as to whether they hold a will. Whilst this may be time consuming, it will help you to eliminate firms if nothing else. You could also place an advert in a local newspaper asking for anyone who has information about the will to contact you.
In a small number of cases, an original will may be held at the deceased’s bank or building society, possibly with the title deeds to their house. Banks used to store original wills, particularly where they were the executors of the estate, though this is now much less common in practice.
Finally, you may wish to conduct a search through Certainty the National Wills Register. For a small fee you can search a database of over 8.4 million wills to check whether your loved one’s will has been registered with them. Certainty do not hold the actual will itself, but they alert the solicitor, bank or other third party that you are looking for a will. It is currently not compulsory in England and Wales to register your will on a database so the search is not conclusive but may help if you have not otherwise succeeded in finding a will.
If you have exhausted all possible avenues and still cannot find a will, then you may proceed to administer the estate on the basis that the deceased did not leave a will. The deceased will be deemed to have died “intestate”. Statutory intestacy rules stipulate who is entitled to deal with the estate, which broadly speaking is the closest living family member (for example, the surviving spouse or children). However, you should always seek legal advice if you are dealing with an intestacy because the rules can be complicated to follow. Administrators must make all reasonable enquiries to try to find a will as set out above. If not, then this could lead to a potential lengthy and costly dispute, particularly if a will is later found.