A person who dies without having made a will is said to die intestate and the legal situation which comes about after someone dies without having made a will is called intestacy.

Partial Intestacy

Partial intestacy is when the deceased did make a will but the will does not or does not fully state how the deceased person’s assets should be disposed of. One way of avoiding this is to include a clause that any residual assets (the residuary estate) will go to certain beneficiaries.

Total Intestacy

Total intestacy is when the deceased has either made a will which was invalid or cancelled and didn’t make a new one or never actually made a will at all.

What Happens to the Deceased’s Estate When Someone Dies Without a Will?

When a person dies without making a will or leaving a valid will the estate automatically passes under set rules known as the intestacy rules. Under circumstances where the deceased has no spouse or civil partner then the beneficiaries are set out in the specific order as follows:

• The deceased’s children. If the children have not yet reached adulthood then the property would be placed in trust. If there are no children then the property would be passed to:

• The deceased’s parents if both are alive or remaining parent if one is deceased. If both parents are deceased then the property would then be passed to:

• The deceased’s siblings and shared equally. If the siblings have not yet reached adulthood then the property would be placed in trust. If the deceased has no siblings then the property will be passed to:

• The deceased’s half siblings and again, if the half siblings have not yet reached adulthood, the property would be placed in trust. If the deceased has no half siblings then the property would be passed to:

• The deceased’s grandparents and shared equally if there is more than one surviving grandparent. If the deceased has no grandparents then the property passes to:

• The deceased’s Aunts and Uncles with the property placed in trust until adulthood if need be. If the deceased has no Aunts and Uncles then the property would then pass to:

• The deceased’s half Aunts and Uncles and shared equally. Again the property would be placed in trust until adulthood. Finally, if the deceased has no half Aunts or Uncles then the property would be passed to:

• The Crown. When an estate is passed to the crown a decision is then made as to which members of the intestate’s family should be provided for.

What Happens When the Intestate has both a Spouse and Children?

In circumstances where the deceased has both a spouse or civil partner and children then the spouse receives all personal assets which could include items such as vehicles, collectables, books, domestic animals, furniture and anything within the estate that belonged to the deceased, as well as a specific gift of £250,000. This gift payment is tax free and will be subject to interest at a set rate until it is paid to the beneficiary.

If the estate is worth more than the gift amount then the rest of the estate is divided up to create two funds, one fund will be held on trust for the deceased’s children and the other fund will be held on trust for the deceased’s spouse or civil partner.

However, if the estate is worth less than the gift amount of £250,000 then the spouse or civil partner will receive the entire sum of it’s worth and the children will be entitled to nothing.

It is estimated that 2 out of 3 people in England and Wales die without making a will.

A Codicil is a document which allows a person to make amendments to their existing Will in a very cost effective and easy manner. In reality a Codicil functions as a supplementary page to your already existing Will. Its purpose is to confirm the already existing Will, but to then add or remove certain provisions or details.

With a Codicil any detail of an existing Will can be amended including changing the sum of any gift left, adding or removing a gift or even changing who the executor will be or who will be the guardian of any minor children living at the date of death.

Changes in your Circumstances

A wide range of events can cause a person to want to revisit their Will and make an amendment. These include:

a)      Birth of a new child where previously you had specified only children already living, so your newborn would not be included.

b)      Death of a beneficiary where their gift, as stated in your Will, will now fail.

c)      Death of the executor as stated in your Will, where no substitute was originally specified.

d)     Death or divorce of the person(s) you had originally specified to be guardian to your minor children, where no substitute was specified.

e)      Religious conversion/purchasing a funeral plan, where you may now want to amend any funeral wishes you had stated in your original Will.

f)       Divorcing your spouse, where the law will now consider them in relation to your Will as having died on the date of the Divorce, meaning that any gift to them will fail. If you had left everything to them it will mean you will have been considered to have died ‘intestate’. Most people will then want to amend this to provide for a different beneficiary. Additionally, on divorce your previous spouse is barred from acting as an executor or trustee.

g)      A change in your financial circumstances, where you may no longer have the asset(s) which you were gifting in your Will.

How to make the Amendment

Amendments cannot simply be made by writing on your existing Will or by crossing things out. Alterations done in this way will not be seen to be valid and will only hamper your executors when they come to administer your Will. Rather making a Codicil on a separate sheet of paper is the best way.

A codicil must:

• Be made by a person of sound mind.
• Refer to your previous Will and identify it by referring to the date it was written.
• State the amendments it is making whilst confirming the rest of the document.
• It must be signed and dated.
• Be witnessed in the same way as the original Will was, although the witnesses themselves do not have to be the same people. The witnesses cannot have an interest in the inheritance from the Will or the codicil.

Depending on what the amendment is that you are making, the codicil will either be adding a clause to your existing Will or removing an existing one and replacing it with an amended version.

There is no limit on the number of codicils that you can make, however if you do make numerous ones, it is best to number them so that on your death your executors will be aware of them all.

What to do after making a Codicil

Once the codicil is drawn up and executed it should be stored with the original Will, preferably in a safe place. By placing it with your Will, your executors will easily be aware of its existence, rather than having different bits of paper with your wishes scattered around. Similarly, it is best to inform your executors that you have made a codicil and to tell them where they can find it, to avoid confusion and difficulty on your death.

DO NOT attach the codicil to your will as by doing this, you are likely to invalidate your actual Will.

Is a Codicil the best route?

Codicils are very beneficial where the change(s) you are making are very minor or simple. However, where changes are significant or more complex, it is advisable to make a new Will. Such examples are:

i.    Changing your main beneficiary, such as after marriage or civil partnership.

ii.   Creating a Trust for certain beneficiaries.

iii.  Where you are making more than two or three changes.

A will is a legal document by which a person can name one or more individuals to deal with their estate after their death. The will should clearly identify the beneficiaries and what is being left to them. Ideally, the deceased will have appointed one or more executors (commonly referred to as Personal Representatives or PR’s), who will be responsible for following the instructions set out in the will and dividing up the estate.

Grounds for challenging a will

There are 2 main ways in which wills are disputed. The first is that a close family member has been left out of the will and has a legitimate reason for asking a court to vary the will to include them based on dependency i.e financial need.

The second main category for contesting a will is that the will is not valid in the sense that it does not comply with the necessary legal formalities or that the person who made the will was under duress when making it. In some cases it can be obvious that the will is invalid, such as if the will was not signed by witnesses, in other cases, particularly the allegation of duress or undue influence, this is difficult to prove and would often involve a lengthy, costly and expensive court process.

The following are some grounds for contesting a will:

• Technical irregularities – such as will is not properly signed or witnessed or there are possibly other wills post-dating the one which executors wish to rely on and implement.

• The deceased did not have mental capacity to make the will.

• The will does not provide adequate support for dependents – Anyone who was dependent on the deceased, such as a partner (who has lived with the deceased for 2 years or more) or child.

• Misadministration of the estate – where executors have failed to properly distribute the deceased’s assets in line with the will or negligence by solicitors.

• Issues relating to property – such as if a property was promised by the deceased to someone who has relied upon that promise or where there are allegations that contributions have been made towards the equity on a house purchase.

Procedure

Generally, it is important to act fast if you wish to contest a will. It can be too late to d anything if a will has been administered and estate distributed so usually the first thing to do is to lodge a caveat at the Probate Registry. This costs £15 and means probate can’t be obtained without notice to the person who has lodged the caveat. It is essentially a marker for the Probate Registry that someone thinks something is not right.

If a caveat is lodged it is likely that the beneficiaries will counter attack by seeking to warn off the caveat, objecting to the claim. If the person who has lodged the caveat wants to in turn challenge this, he/she/they should lodge an “appearance”.

The above steps are separate from formal litigation, which is often the way disputes proceed, but litigation is inherently risky and expensive and should always be very carefully considered and monitored. As with many forms of litigation, it is worth considering using services such as alternative dispute mediation.  One of the difficulties with disputes over wills is that they often involve families and when families get involved in litigation, it can become very personal very quickly, and positions become entrenched.

How long do you have to contest a will?

Inheritance claims should be brought within six months from the date of the grant of representation. However, the law relating to the limitation on claims is complex and the simple message is that if you think you may want to claim, take legal advice as soon as possible. Keep in mind that the court has jurisdiction to allow claims out of time in particular circumstances.

Let’s face it, money changes people and where there’s a lot of money at stake, disputes can get very nasty, especially where families are concerned. Will disputes are quite common and fall into many categories. The ones that get reported tend to be the cases worth very big money, as indicated below.

Nothing quite says holiday cheer like a fight among family members, especially with an entire mega-inheritance—about $400 million—hanging in the balance.

A 104-year-old childless heiress who passed away in May 2011, Huguette Clark allegedly left two signed wills which don’t exactly see eye to eye. The two wills were both reportedly signed within a month of each other in 2005. Offering up one will signed in March 2005, 21 relatives filed court papers Monday as part of a their claim that they are the rightful beneficiaries of the estate. But a will signed in April 2005 leaves the family out of the loop and instead gives the fortune to create an art foundation, using her oceanfront property in Santa Barbara, Calif., as a museum, and even tosses $34 million toward Clark’s nurse, plus half a million each to her attorney, Wallace Bock and her accountant, Irving Kamsler.

via Two Conflicting Wills Turn a $400 Million Estate Into a Fight | NewsFeed | TIME.com.

When a person dies leaving an Estate which requires someone to distribute it to beneficiaries, it is necessary for the executor mentioned in the Will, or administrator of the Estate (where there is no Will), to apply for a Grant of Probate or Letters of Administration from the Probate Registry.

In certain situations there may be a party who was involved with the Deceased who may not wish for Probate to be granted to a particular executor or administrator. In such circumstances they would need to enter a Caveat with the Probate Registry to, in effect, block any grant of Probate until such time as matters can be resolved.

Caveats are usually used in the following situations:

• There is a concern around the validity of the deceased’s Will.

• The executor has refused to provide a copy of the Will.

• There is concern that undue influence or fraud may have occurred when the Will was signed.

• There are concerns that the assets of the estate will be disposed of contrary to the wishes expressed in the Will.

• There is a dispute as to the entitlement of the person applying to the Court to administer the estate.

 A Caveat should not be used as a method of extending the limitation period where you intend to bring a claim for Financial Provision from a person’s estate. Should you do so, the Courts could make a Costs Order against you.

You can enter a Caveat either directly or via your solicitors. Although there is a form to complete which sets out what information must be included in your application, you can actually simply write a letter to the Probate Registry requesting a Caveat be entered, provided you include all the requisite information. It should be noted that such an application can only be made in writing. They will not be taken over the phone.

The information required includes:

a)            A signed request asking for a Caveat to be entered.

b)            The full name and date of birth as stated on the death certificate.

c)            The last permanent address of the deceased.

d)            The name and address of the person requesting the Caveat.

This information is used to prevent Probate being granted in the estate without you being informed first. It is this information which you provide that is used to check against any applications for Probate so it is essential that you get these details correct. Should there be a discrepancy in the name or dates, it could mean that the Caveat would not be effective.

 In addition to the request, there is a Court fee of £20.

Once in place the Caveat will remain in force for 6 months. Should you wish it to continue after that time, you will be able to apply for it to be extended for a further 6 months in the last month before it expires. An additional fee will also need to be paid at that time. If at any time you wish to remove the Caveat, you can simply write to the Probate Registry and request that they remove it. Once the 6 months passes the Caveat expires. No reminder will be sent to you. You must make sure that if you want to extend it you make a reminder for yourself.

If you are an executor or administrator of an estate trying to obtain Probate, it can be quite surprising to find out that there is a Caveat entered against the estate that you are dealing with. This is because the Probate Registry will enter the Caveat without telling you, until you apply for Probate.

Should you disagree with the Caveat which was entered you can issue a ‘Warning’ to the person who requested the Caveat. This requires you to complete a specific form to be sent to the Leeds Probate Registry. There is no fee for a warning.

This article courtesy of Shmuel Portnoy of Darlingtons, Solicitors in London. Please contact Darlingtons for advice on wills, probate and a full range of business or personal legal issues.

This Warning is then sent to the person who requested the Caveat who will then have 8 days to respond. Such a response must be in the form of an ‘Appearance’. This is a document which sets out the summary grounds as to why the Caveat has been issued.

If the person who entered the Caveat does not file an Appearance, then you can apply for Probate and the Caveat will be removed. Should an Appearance be filed, then the Caveat will remain in place indefinitely until such time as either an agreement is reached between the parties, an application is made to the Probate Registry for a directions hearing, or formal contested probate proceedings are commenced at Court.

It should be noted that once a Caveat has been challenged and an Appearance has been filed, the Caveat cannot be removed without an order of the Registrar on agreement of both parties or by order of the Court. This could mean that even if the person who applied for the Caveat now wishes to remove it, they may no be able to, incurring further unwanted costs.