Where's the will?
September 2010
by Dan Godsall
In 2010 the scale of intestacies shows no signs of abating. The default position when a will isn't discovered is to distribute the estate on an intestacy basis, allowing the family of the deceased to wrap up their loved one's affairs on a 'best endeavours' basis. Best for all concerned, you might think.
So why is it that, despite the best efforts of charities like Will Aid, the availability of professional will writing services - even bank accounts come with free will writing - and the public appetite for programmes like Heir Hunters, society is apparently ignorant of the benefits of making a will?
Inertia accounts for part of the problem. Too often people assume that, will or no will; their estate will automatically pass on to their immediate next of kin. It's a crazy misconception that can have devastating consequences, particularly for the immediate family of the deceased.
Then there's the supposed distaste we humans have for any form of discussion about our demise; as though talking about our death might somehow speed up the process. Woe betide anyone who has the misfortune to walk under a ladder or cross the path of a black cat on the day of their will writing appointment with their solicitor; it's almost certain death.
Increasingly these reasons don't stack up. They may explain why wills are much less likely to be in place for young people - by young, read below middle aged - that feeling of invincibility and a complete disregard for what might happen tomorrow, as evidenced by the failure of many young people to start planning for their retirement too. It seems that when we are young, we have no plans to die and no plans to live either.
The unspoken issue which is increasingly coming to the fore, thanks to services like Certainty, the UK's first national will register, is that many people do go to the expense and effort of recording their wishes for their estate but have historically failed to inform family members where the will is located.
Ask any decent family solicitor if they are storing wills for people who are most likely already deceased and the answer is almost certain to be 'yes'. The truth is that a failure to plan is not the only reason for intestacy; the failure to make loved one's aware that the plan exists is another contributory factor.
And then there's the most heinous of all reasons for intestacy - the malicious destruction of wills by family members who discover that the wishes of their loved ones don't correspond with their own. No one said that wills were meant to be fair, or honour every member of the family to the same extent. Death can bring out the best and the worst in us.
Thankfully, the Laws of Intestacy equip probate solicitors with the ability to discharge their responsibilities and ensure their clients benefit from a qualified distribution of an intestate estate. Is it what the deceased would have wanted? Who knows, but it is within the law, so if nothing else, it is legitimate.
However, increasingly, probate solicitors are facing the challenge of protecting their clients from the potential claim on an estate from a missing beneficiary or from beneficiaries who discover a will after the distribution of the estate. And even before they can deal with the distribution of assets they must establish the existence of the will and then employ the services of a professional genealogist to search for either named or potential missing beneficiaries.
To minimise the level of exposure to these risks, solicitors have historically had few options. When it comes to locating a will, it's been a case of time-consuming research and in the case of missing beneficiaries, Benjamin Orders have been used but this solution is cumbersome and expensive, and is not appropriate for every case.
In recent years, the situation has evolved rapidly and growing numbers of solicitors and administrators have identified the benefits of using simple, effective and robust alternatives. Nowadays, it is possible to insure the executors and estate of the deceased against future claims, arising from the discovery of the elusive will or missing beneficiary.
This is hardly surprising considering the potential complexity of the issue. Where an estate has been distributed on an intestacy basis and a will is subsequently discovered, all assets would need to be reclaimed and re-distributed. Apart from the administrative burden this causes for the solicitor or administrator, there is also the risk of significant financial pain for the client, not to mention emotional stress.
This type of protection eases the anxiety for executors and beneficiaries when an estate is distributed on an intestacy basis, and should be offered to clients whenever intestacy occurs. But it doesn't stop the deceased from turning in their grave. For that you really need certainty.