Suspicious that a Will cannot be found. What next?

[Carlson999]

Hello all, first time experiencing probates/close family death/intestacy etc. for me.

I just found out my estranged mother passed away 10 months ago (I live abroad). Unbeknown to me, she married her partner at a very advanced age, presumably to be able to provide him with some financial support and to remain in the property if he outlived her....which he has. She was very clued up financially and very organised. So, I was surprised to learn from the solicitor than intestacy rules applied to her estate.

Now, I am very very sure that she wouldn't not have a Will, even if it's on her PC or in her files and her surviving partner could well be doing something underhand by not declaring one. If that's the case, what can be done? I think the solicitors are the executors, so it's their responsibility to check fully, is that right? Can they actually go in the house if I tell them where it's likely to be?

[PallasAthena]

Have you clarified whether your mother's estate is Intestate because no Will can be found or because there is a Will but it is invalid?

I ask that particularly because you say she "married her partner at a very advanced age". Marriage usually makes any exisiting Will invalid so she would need to have made a new Will. If she did not do that after her marriage then her estate will be Intestate.

The solicitor cannot be appointed the Administrator (Executor) of her Estate themself so are presumably employed to do the Estate administration by whoever has been appointed Administrator (Executor) of her Estate under Intestacy rules. Her surviving partner (husband) is the most likely person to have been appointed the Administrator (Executor) and to have employed the solicitor to act for them. Do you know if that is what has happened?

It is the Administrator (Executor)'s duty to make every effort to find a Will and if it is her husband you'd expect him to know where to look. If you have an idea where it might be there is nothing to stop you passing that suggestion on to the solicitor but you can't insist they follow it up especially as 10 months have passed since her death.

Have you been told by the solicitor that under Intestacy rules you may be a beneficiary? If so it might not be in your financial interest for a valid Will to be found as the Will may not leave you anything (as you said you were estranged from your mother to the extent that no-one even informed you of her death).

[Carlson999]

Thanks so much for you excellent reply, which I think has opened up my eyes to a few things. I have asked the solicitor why it became intestate and waiting for them to reply. But now you mention it, I do think it’s because my mother married and didn’t realise that her existing Will would be revoked as a result. Mistake. I will get something from the intestate rules but her spouse will get a lot more including 75% of the property value. That’s going to be a problem, because it was always her verbal wish for the house NOT to pass to his adult children and instead pass to mine (her only grandchildren). I’m not concerned by myself getting zero if it means my children get the property and not him.

Regarding the administrator/executor, I think you nailed it: he would have been the admin and appointed the solicitors. Amazing how i only had a call from them 10 months after her passing.

[PallasAthena]

Have you looked at the government Probate search site to see if Letters of Administration (Probate) has been issued? After 10 months it is likely it has been.

Once it is issued it is a public document that will tell you (in cases of intestacy) who is the Administrator (Executor) and the total value of the Estate (but not how the value is made up).

It's free to check if the Letters of Administration has been issued but you have pay to download a copy to see what it says. Used to be cheap to download but last year the government increased the price 10x to an eye-watering £16. That's stealth taxation in action!

Search probate records for documents and wills (England and Wales) - GOV.UK

[Carlson999]

Yes I looked and it says: in administration. I have a full breakdown of the estate from the Solicitor already but I will ask them who the Executor is. I'm sure it will be the surviving spouse because there are no other family left.

[Carlson999]

So now I have a bit more information from the Solicitor after probing. After my mother and her partner "secretly" married (I don't know when, but I've ordered the marriage cert), at some point they jointly went to a different law firm with the intention of filing their respective new Wills. That solicitor expressed concern that my mother was not mentally capable of understanding what she was doing and ordered a Mental Capacity Check first...I'm assuming Alzheimer's or dementia had begun setting in. This was 3 months before her death and no new Will was ever signed, hence the Intestacy.

So what would you do in this situation? Is there any point in fighting against the probate? I am very sure that her 2018 created Will would not have left the property to her Spouse (or even 3/4 of it as he'd get now). I'm not thinking about my outcome here...rather her grandchildrens'.

[atticus]

The problem here is that marriage revokes previous wills: s18 Wills Act 1837 https://www.legislation.gov.uk/ukpga.../26/section/18

[PallasAthena]

Sorry but I can't see you have any options here to secure your mother's house for your children although I am not a lawyer so perhaps another poster here can suggest something.

I am assuming (in view of your estrangement from your mother and her husband apparently having children of his own and not bothering to inform of her death) that there is no possibility of her husband voluntarily agreeing to change the estate distribution under intestacy rules in your favour. Nor does anything in your posts suggest a possible claim under the Inheritance (Provision for Family and Dependants) Act 1975. Unfortunately your recollections of what your mother said to you some years ago about her intentions don't provide a basis for legal challenge as far as I can see from your posts.

From what you have said it is correct that your mother died Intestate and Intestacy rules have been applied. Marriage revoked her 2018 Will and she was never able to execute a new Will.

Although we don't know the detailed Estate values, nor whether the house was solely or jointly owned, that information has been given to you by the Administrator's solicitor and you haven't indicated that you dispute the Estate value. You will be aware that under intestacy your mother's husband will receive a certain sum and the balance of the Estate will be split between the husband and you (and any other surviving children of your mother). That's presumably why the solicitor tracked you down, to advise you what you would inherit?

Will the house have to be sold to enable you to receive your legacy in cash?

[Carlson999]

Her Spouse would get £322k (75% the value of the house) plus another £150k from residue. I’d get the remainder. At 83 years old he wants to keep the house no doubt to pass down to his child or children and would probably want to use his residue to buy me out.

i think the house has been undervalued by £40-£50k.

It’s mighty suspicious to me that 2 years before her death caused by dementia, they married with one of his children and her husband being witnesses. Why? Was she already in fairly advanced dementia? Would this be grounds to contest the Intestacy probate, or at least allow to to file a Caveat?

[Carlson999]

Her Spouse would get £322k (75% the value of the house) plus another £150k from residue. I’d get the remainder. At 83 years old he wants to keep the house no doubt to pass down to his child or children and would probably want to use his residue to buy me out.

i think the house has been undervalued by £40-£50k.

It’s mighty suspicious to me that 2 years before her death caused by dementia, they married with one of his children and her husband being witnesses. Why? Was she already in fairly advanced dementia? Would this be grounds to contest the Intestacy probate, or at least allow to to file a Caveat?

[atticus]

It is indeed mighty suspicious that her estranged son who lives abroad was not invited.

[Tofros]

The mental capacity required to consent to marriage is lower than that to make a will. Even if a marriage is annulled by reason of incapacity, cases have held that a previous will remains revoked, though in those circumstances there would be no husband to benefit from intestacy. Maybe look into whether and how marriage can be annulled post death. Proposals to reform probate and wills include abolishing marriage revocation though that does not help you.

There is a slight misstatement in your characterisation of what the husband will receive. He will get 322k statutory legacy plus half the remainder. Residue has a technical meaning. If probate has been granted it is too late to file a caveat. Depending on the date probate was granted it may also be too late for a claim under the family provision act - you only have 6 months.

if probate has not yet been granted it may be worth filing a caveat asap and then taking advice. You could leverage the caveat to negotiate things like ensuring the house valuation is a proper RICS valuation not just by an estate agent. You may also be able to negotiate how the estate is distributed. If part of the house comes to you instead of cash, you could do a deed of variation within 2 years of death to transfer the inheritance to your children which makes it as if they had directly inherited under the intestacy. This would then preserve the benefit of any subsequent increase in value for your children subject to CGT on the gain. Do consider the effect though of being part owner of a property on any first time buyer stamp duty allowance they may have. Also look into inheritance tax consequences of the alternatives. If it saves IHT that may or may not be an incentive for the other side.

[Carlson999]

Atticus, me not being invited is the least suspicious part of the whole saga!

[Carlson999]

The mental capacity required to consent to marriage is lower than that to make a will. Even if a marriage is annulled by reason of incapacity, cases have held that a previous will remains revoked, though in those circumstances there would be no husband to benefit from intestacy. Maybe look into whether and how marriage can be annulled post death. Proposals to reform probate and wills include abolishing marriage revocation though that does not help you.

There is a slight misstatement in your characterisation of what the husband will receive. He will get 322k statutory legacy plus half the remainder. Residue has a technical meaning. If probate has been granted it is too late to file a caveat. Depending on the date probate was granted it may also be too late for a claim under the family provision act - you only have 6 months.

if probate has not yet been granted it may be worth filing a caveat asap and then taking advice. You could leverage the caveat to negotiate things like ensuring the house valuation is a proper RICS valuation not just by an estate agent. You may also be able to negotiate how the estate is distributed. If part of the house comes to you instead of cash, you could do a deed of variation within 2 years of death to transfer the inheritance to your children which makes it as if they had directly inherited under the intestacy. This would then preserve the benefit of any subsequent increase in value for your children subject to CGT on the gain. Do consider the effect though of being part owner of a property on any first time buyer stamp duty allowance they may have. Also look into inheritance tax consequences of the alternatives. If it saves IHT that may or may not be an incentive for the other side.

Thanks Tofros. Yes, husband will get 322K GBP + 50% which in my case amounts to about 75% of the estate. I just didn't bother putting the figures in. Just checked and probate was issued in December even though the Solicitor only made initial contact 2 weeks ago (10 months after her passing). Does that mean I can't do anything? The house was valued using, I suspect, their in-house valuer who is RICS registered. I still think it's unreasonably low considering how much identical properties sold for in the close in past years.

Great pointers for me regarding part-ownership and Deed of Variation. IHT won't be applicable but I'll check Stamp Duty and estimate CGT. Hopefully I can still use the Caveat and gain some negotiation leverage as you said. Much appreciated.

[Tofros]

It is too late for a caveat. Caveats prevent probate being granted. You should consider raising a dispute ( with the benefit of advice). You can still raise a dispute though you have fewer cards in your hand once probate is granted. However, executors open themselves to liability if they distribute an estate while a dispute is still ongoing. Do think carefully about the costs for both you and the estate. Legal fees for contentious probate can be darned expensive.