Intestate estate, though intentions recorded - what happens next? Help please.

[lottiegarbanzo]

Hi,

If someone writes out a will on a will 'form' but doesn't sign it or have it witnessed, then dies, presumably they are counted as dying intestate, as there isn't a 'proper' will.

What happens next? What's the process?

What are the implications?

Just out of curiosity, would their signing it have made any difference? It being witnessed and signed by the named executors? Or must wills be witnessed by a solicitor or other official to count?

In this instance there is no question about authenticity, soundness of mind, or intent. The content is exactly as expected. No-one will dispute the 'will'.

The next of kin (sibling) is not a beneficiary but wouldn't expect to be, so, if everything passes automatically to them, they would probably distribute the assets as set out in the 'draft will'. They are not in a position to act as executor and are not named as such.

So my concern is more about the process and its implications.

Does the government somehow take more money this way? Will there be delays in getting things sorted out? Will the named executor be prevented from doing basic sorting out of paperwork, closing utility accounts, passing bank account details to solicitors for probate etc and if so, will someone else actually go in and do this, or is it just a question of delay?

Clarfication and advice would be much appreciated, thank you.

Oh and just to complete the picture, the next of kin has already stated in writing that the named executor should act on their behalf. So the 'executor' is the 'acting next of kin' and this status can be made more official through a solicitor if necessary.

The rules of intestacy will apply

and the Will would have to be signed and witnessed properly for it to stand

Ok, thanks, so what are those rules? What happens and how is it different from a situation where there is a will?

Anyone available to tell me about the process today?

Was the deceased married OP?

When you say "writes out" do you mean that literally? If so, one of the lawyer regulars will know whether that makes it an unsigned, unwitnessed, holographic will and what the implications are, if any.

Not married, no children. Next of kin is the sibling. Niece (me) is named executor and 'acting next of kin'. I mean writes, in pen on paper.

It's not the inheritance I'm concerned about, that will work itself out. It's the process. Will I be delayed in sorting out basics like closing bank accounts and utility accounts? Will some government solicitor have to do this instead? To what extent will I have to liaise with them and at whose convenience? They are surely not going to do the job of going into the person's home and sorting through documents, are they?

The issues that concern me most are:

• at whose convenience will any necessary liaison happen?
• will it take longer this way?
• will I be prevented from doing things like sorting out and disposing of the person's possessions and smartening up their home up for sale to maximise the price?
• will whoever acts as official executor cost the estate a lot of money?

Your parent or yourself will need to apply for a grant of representation - www.gov.uk/wills-probate-inheritance/overview - then they would be able to administer the estate as if they were named in the will. I don't know exactly how this will work if you want to administer it in lieu of your parent

Ok that sounds hopeful, thanks. I had visions of some official solicitor taking charge and selling everything off without regard for relatives or price, then charging considerably for their time.

I found the Which Guide to Wills helpful, and it deals with people dieing intestate, plus t between the difference between how it works i Scotland rather than England & Wales, which could be relevant.

Basically, there will be a delay in settling the estate, because you have to get probate granted, which takes longer than with a will, and you won't be able to sort out things like bank accounts until that happens.

You'll need original copies of the death certificate for most places, and you will need the original or certified copies of any legal documents (which in your case isn't the will.) Banks I found were pretty good and knew exactly what you need to do, which documents, signatures and so on. BT & Orange were appallingly useless, and all other companies varied between okay and good.

I found all the death admin time consuming, at a time you're least feeling up to it, so take care of yourself too, and good luck with it all.

Hi Lottie. I'm a probate lawyer so hopefully I can answer some of your questions. The following applies to English law so if you are in Scotland then the rules are different.
For the document you refer to to be considered a valid will it must have been signed by the testator and witnessed by two individuals. Both individuals must have been present in the room at the same time and must see the testator sign the will. The will must be dated.
If the document that you hold does not comply with these specifications then generally it will not be considered valid and the testator will have died intestate.If you have any doubts then you should take it to a probate solicitor to discuss the matter.
A grant of representation will need to be obtained in order for you to close bank accounts, sell investments and deal with property. Some banks may allow you to close accounts without a grant but it will depend on the sums involved. Each bank has its own rules on this so you will need to ask them individually.
To obtain a grant you can either apply in person to the probate registry - cost £210, or through a solicitor - cost £150 although the solicitor will charge for their time to deal with this. Costs are all borne by the estate , ie out of the funds of the deceased. Banks will release funds in advance of a grant being received in order to pay funeral costs, inheritance tax and the grant application, but not for anything else.
You need to ascertain who is entitled to take the grant. From your post it sounds as though it is the deceased's sibling. If they want you to act on their behalf then you will need power of attorney to do so. You will need a solicitor for this.
As far as distributing the estate goes it should be done according to the laws of intestacy. If you wish to distribute it differently ( in line with the document left by the deceased) then I would strongly advise you to seek legal advice as a deed of variation may be required. Without a deed there could be tax consequences for the sibling who has inherited particularly if the estate is large.
I would suggest that you tread carefully with this. Most solicitors offer a free initial consultation for half an hour or so. I would suggest that you get some advice on the next steps from a professional and then you can decide whether you wish to deal with the estate yourself or not.

Hope this helps.

Thank you. Especially useful to know, now, that the bank account could be used to pay some up-front costs.

It sounds like an initial solicitor appointment and my in filling in the application for grant form, combined with obtaining something official granting me power of attorney from the sibling, are the starting points.

I and the deceased are in England. The sibling in another country entirely. I'm quite willing to do all the admin and the practical sorting out of the home and possessions but in my own time, to an extent.

I'm a bit alarmed at the idea (from the govt web site) that inheritance tax has to be paid up front. Not clear if it really means before the proceeds of selling property etc are distributed though, rather than before the property is sold. Doing the latter would be tricky, probably not enough finds in the bank.

Yes inheritance tax has to be paid before you can even apply for a grant but if the bulk of the value of the estate is in property then you can pay the tax in equal installments over 10 years, although interest will be charged.
In cases where there are insufficient liquid funds in the bank to pay it all up front then you could opt for the installment option pay the first installment and then pay the balance as soon as you have funds available to minimize the interest.
Be aware that you have to pay the inheritance tax within 6 months of death before interest starts accruing. You also have to file form IHT 400 with HMRC within 12 months of death, after that penalties will be charged. After you have obtained the grant there is a 6 month period during which claims against the estate may be brought so you should not distribute until after that date. You should also consider statutory notices to limit the timeframe during which creditors may bring claims against the estate.
By all means do things in your own time but be aware of the statutory deadlines outlined above.