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Michelle Gavin

Michelle Gavin

Partner & Head of Wills Trusts & Probate

Click here to view Michelle’s profile.

We all have friends or relatives that perhaps the only contact you have with them is by way of Christmas and Birthday cards.

What happens if a helpful neighbour gets in touch with you (having got your details from an address book) to let you know that sadly your first cousin, Sally has passed away and that her funeral needs to be arranged and there are matters to attend to.

You don’t know any details of cousin Sally’s personal affairs. You don’t know who her Solicitor is (or if she has one) nor do you know if she has made a Will as you haven’t had regular contact with her for many years and that wasn’t something you felt you could ask about anyway.

Your understanding is that Sally is a divorcee with no children. Sally was also an only child. 

You want to help but where do you start? Can you organise her funeral? Do you have status to do anything?

Assuming you can access cousin Sally’s home, you might be able to find paperwork including a copy Will, Title Deeds and bank statements amongst her personal papers.

What is a Will?    

A Will is a legal document that lets you decide what happens to your money, house and possessions when you die.   The Will also appoints Executors who are the people responsible for organising, sorting out financial matters and distributing the estate in accordance with the terms of the Will.  

Many original Wills are held by the Solicitor’s firm who drew it up but often the person is provided with a copy which they keep at home. If there is a Will, it would be up to the Executor to contact the Solicitor (if known) to let them know that their one of their Clients has died.

We recommend that you read our Practical Guide for Executors to gain an overview on what action needs to be taken when someone has died.

Whoever is appointed as the Executor in the Will takes the lead in matters concerning the estate and they may wish to instruct a Solicitor to act on their behalf. 

What if you cannot find a Will?

If it isn’t clear if cousin Sally did actually make a Will, then this is where things get a little tricky and we recommend you take specialist advice from a Solicitor if you find yourself in this situation.

If you can be sure that cousin Sally has enough money in her bank account to meet the funeral account you might feel confident to arrange the funeral knowing that you can present the original funeral invoice at the bank and ask them to pay the same or reimburse you for what you have paid to the Funeral Director.

Where it is not clear whether cousin Sally actually made a Will then it could be that there is no Will and therefore, cousin Sally’s estate would be distributed in accordance with the ‘rules of intestacy’ which are illustrated in our flowchart.

You would want to make absolutely sure that there is no Will before assuming the ‘intestacy rules’ apply to avoid overstepping the mark or treading on someone else’s toes or potentially distributing the estate to the wrong person entitled.

The danger for you by taking action to get cousin Sally’s affairs sorted (without being sure about the existence of a Will) is that you might dispose of items in the house (or arrange for her home to be cleared so that it can be sold) but a Will might have left specific instructions about who receives such items. The worst case scenario here would be that you could be sued by the beneficiary who should have received those items.

There is no formal national register of Wills. A company called Certainty can carry out a search for an original Will by contacting Lawyers in the region to see if they recognise cousin Sally’s details for a fee. They also place Notices on the Certainty Missing Will Notice Board which is accessed by many Solicitors who are members of Certainty. 

Even if you have carried out an extensive search of the cousin Sally’s property and checked with local firms of Solicitors via Certainty to see if they hold any documents for cousin Sally and to the best of your knowledge you don’t believe that there is a Will, then there is a rank priority where blood relatives are concerned which gives that person the entitlement to deal with cousin Sally’s affairs (they are known as an ‘Administrator’ rather than an ‘Executor’).

If you instruct a Solicitor to assist you with sorting out Sally’s affairs then you may be personally liable for their costs if it later transpires that cousin Sally has in fact left a Will and you are not an Executor (and that Executor does not wish to use that Solicitor to continue to act) so be careful you don’t get too involved before ensuring no Will has been made.

To find out whether cousin Sally owns her own house is relatively straight forward if her property has been registered with the Land Registry. If so, there is a fee of £3 plus VAT to download a copy of the Title.  This will also tell you if there is a mortgage registered on the property.

Where the intestacy rules do apply then it is strongly recommended that a Genealogist is instructed to establish and verify all of the blood relatives entitled on the paternal and maternal side of the deceased. As a relative you may well be able to provide lots of information to assist the Genealogist. It is not unusual to have 20 or 30 blood relatives who are entitled under an intestacy in differing proportions and this is likely to have an impact on the legal fees to administer the estate.

People are often mistaken that second cousins inherit under the intestacy rules and this isn’t the case so it is really important a Genealogist is instructed early on to confirm who the persons entitled to the estate are. 

What if you remember Cousin Sally was married but they separated and never formally divorced? What if she had a child that she was estranged from? What if she had a child who wasn’t formally adopted? They could well be the beneficiary entitled to her estate. You can’t assume anything in these situations which is why a Genealogist should be on board early on.

 

What if you cannot find any paperwork relating to her assets and you are unsure as to what she may have? There are Companies that can assist here such as Landmark Financial or Inheritance Data. They will carry out a comprehensive search not just to see if there is a Will, but they can also search for bank accounts, shares and pensions for the payment of a fee. Such companies will normally only accept instructions via a Solicitor. This is a sensible precaution for any Administrator to take to satisfy themselves that they are acting correctly.

At Band Hatton Button, we have a wealth of experience and include members of Society of Trust and Estate Practitioners (STEP) and Solicitors for the Elderly (SFE). This means you can have peace of mind that you are dealing with a highly experienced and qualified team who specialise in helping with making Wills, Power of Attorneys, Attorney Support Services, Tax Planning, Administration of Estates, Trusts, Deputyship and Court of Protection related matters.

The above are just a few of the things you ought to consider when first contacted about a distant relative.  For individual advice and assistance contact our Wills, Probate and Trusts Team to find out how we can help.

Michelle Gavin TEP 

Partner, Head of Wills, Trusts and Probate team