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21st March 2022

Vanina Wittenburg comments on the impact of the BVD cutting the funding of will searches, in This is Money

Vanina Wittenburg comments on the impact of the BVD cutting the funding of will searches, in This is Money
Vanina Wittenburg
Vanina Wittenburg
Senior Associate

Vanina’s comments were originally published in the Daily Mail’s This is Money and can be found here

Long-term effect of the Bona Vacantia Division of the Treasury Solicitor’s department (BVD) having cut funding of will searches:

“Unlike other jurisdictions, there is no requirement in England and Wales to lodge a copy of your Will with the courts or another government agency. It is possible to lodge a copy of a Will with the National Wills Register or with HM Courts and Tribunals Service (HMCTS), but this is wholly voluntary. This means that where a person dies without a next-of-kin, and it is not immediately evident whether they made a Will and there is no Will stored with either the National Wills Register or HMCTS, then time would have to be spent investigating whether a Will was ever made. This can be done, for example, by a Certainty Will Search through the National Will Register.

“In the case of potentially intestate estates referred to the BVD (or in the case of estates in Lancaster and Cornwall, the firm representing the Duchy of Lancaster and the Duchy of Cornwall respectively), prior to 2015, a will search would be made in all cases before an estate was added to the unclaimed estates list. Part of this search would have involved contacting firms local to the deceased and other relevant areas to find out whether a Will was held with any of them. These searches are no longer made, and this means that potentially intestate estates are placed on the unclaimed estates list without any investigation as to whether a Will exists.

“It is interesting to note that the reason these searches are no longer done is not to do with cuts to funding. Any such searches would be payable by the estate in any case, so they would not cost the BVD anything. The BVD must have had different reasons for stopping the searches, and it is difficult to know what those reasons might be.

“Although the fact that Will searches are no longer completed before an estate is added to the list may at first glance look like it could potentially cause heirs to miss out on their entitlement to an estate, it is worth noting that in reality there are a number of heir hunting companies which closely scrutinise the unclaimed estates list (which is freely available online). These companies will investigate whether they can locate any next-of-kin or a Will. If they do find any information, they will therefore be in touch with the next-of-kin or executors. So all is not lost and the fact that a Will search is not undertaken initially does not necessarily mean that heirs will lose out.”

The impact on next of kin in particular:

“In cases where there is next-of-kin, then hopefully the estate would not have ended up on the unclaimed estates list in the first place, as any such next-of-kin would have been identified prior to this. If no next-of-kin have been identified but they do exist, again, it is likely that heir hunters would locate them and get in touch. It is worth noting that not undertaking a search for a Will would not necessarily impact next-of-kin, given that they may be entitled under the intestacy rules in any case. The entitlement under the intestacy rules in England is generous, and goes as far as uncles and aunts of the half blood (i.e. who only had one parent in common with one of the deceased’s parents) or their descendants.

“There might be a problem where a next-of-kin is identified and they are treated as the expected heir, but a Will is later identified which leaves the estate to others, thus dashing the hopes of the next-of-kin. Although this situation may sometimes be unavoidable, the recommendation is always that where someone has died intestate, and a next-of-kin is identified, a Certainty Will Search should be undertaken sooner rather than later. This may need to be paid for out of pocket in the first instance, but should be repaid from estate funds in due course as it is an expense of the estate.”

Next steps if you hear of a relative having died intestate and how you source help in finding a will or what to do if there isn’t one:

“As explained above, in such cases the first step would be to undertake a Certainty Will Search. It would also be worth writing to HMCTS to find out where a Will has been lodged with them.

“If possible, someone should go through the deceased relative’s filing cabinets, drawers, etc. (and safe, if there is one) to see whether a Will, or a copy of a Will, can be found. If there is any correspondence from solicitors or will-writers, then they should be contacted and asked whether they hold a Will for the deceased. It may also be deemed appropriate to contact law firms local to the deceased to ask whether a Will is held for them.

“Finally, the relatives should also write to any banks with whom the deceased had an account and ask them whether they kept any items in safe custody on behalf of the deceased, including whether the deceased had a safety deposit box with the bank.

“If there is no Will, then the intestacy rules applicable to England and Wales (under the Administration of Estates Act 1925) will need to be looked at. This sets out the order of relatives with an entitlement to the estate, starting with the spouse and children, if any, then parents, full siblings and their descendants, half siblings and their descendants, grandparents, full aunts and uncles and their descendants, and finally half aunts and uncles and their descendants. Only if there were no people in any of these categories would the Crown (or the Duchy of Lancaster or Duchy of Cornwall) become entitled. The same order of priority determines who is entitled to be the personal representative (which in cases where there is no Will is called the ‘administrator’) of the estate.”

How important is it to talk to your family members about putting together a will and knowing where it is kept:

“I recommend to my clients that they let family members know they have made a Will. I also always make sure I send a copy of the Will to the client to store with their papers, whilst the original is kept in our safe deeds store.

“If you feel awkward about telling people you have made a Will, it is worth noting that you do not need to tell anyone what the contents of your Will are it is just important that someone (whether a family member or anyone you have appointed as an executor) is aware that you have one, and knows where your important papers are kept.

“If you do have solicitors, unless your family or executors already know about them, then it makes sense to keep some of their correspondence so that someone looking at your papers would find it, and think of getting in touch with them.”