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New Law Journal June 2011 : Location, location, location

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Daniel Curran reports on the complexities of cross border searches

Tracing beneficiaries is not only time consuming but fraught with challenges and difficulties, especially where the search for a beneficiary takes the practitioner to beyond the English and Welsh borders. While it may be tempting for a solicitor to resort to online search engines and phone books to begin this process, the likelihood is that they will quickly find themselves in a complicated and tangled web of foreign privacy laws, language barriers and previously undiscovered beneficiaries. These challenges not only result in labour intensive investigations which quickly drain resources, but require specialist expertise
in order to trace entitled persons across borders, time zones and jurisdictions.

Scottish & international searches

Unlike English and Welsh intestacy law, in Scotland when a person dies intestate, the estate is distributed according to the eldest degree of kin. Consequently, where there are no surviving aunts, uncles or grandparents, the estate could pass to descendants of great-grandparents, throwing up any number of beneficiaries.
In the event therefore, that a solicitor’s search leads them to Scotland, they could be faced with multiple beneficiaries and it can take years to trace and locate them, untangling an often complex web of entitled heirs. Unlike solicitors, professional probate genealogists have dedicated resources aimed at uncovering the identity of these beneficiaries, using local experts to exhaust all avenues of succession whilst significantly speeding up the search.
It’s not unusual for the search for surviving heirs to go global, as increasing numbers of people have relocated to the UK or made the decision to move abroad
encouraged by cheap flights and advances in mobile and internet technology. This presents a number of challenges when tracing beneficiaries, which cannot be
solved simply by inputting the beneficiary’s name into a popular internet search engine.
Not only is it difficult to pinpoint an heir in a foreign country, but privacy laws differ from country to country and can then differ from state to state within a country, as is the case in Australia. These privacy laws are numerous and, without knowledge of the privacy laws in Canada for example, a solicitor may be surprised to discover that they are denied access to an individual’s records because they are not a family member. As experts in foreign privacy laws,
professional probate genealogists are able to anticipate and avoid these situations by utilising their specialist local knowledge and network of experts to source the relevant information that is needed to trace a beneficiary. Such searches are intricate and detailed, extending beyond the family tree to obituaries, press cuttings and grave stones in the hope of uncovering clues which will lead them to a beneficiary.
Particular difficulties however, lie in cases which can be traced to Eastern Europe where borders have moved, town names changed and records damaged or even destroyed during the Second World War. This results in significant delays to the investigation, which can become increasingly expensive and protracted, often
lasting several years. Where records and relevant documents are obtained, these will need to be translated by a trusted source. Professional probate genealogists are used to tracing beneficiaries to Eastern Europe and all over the world, guided by their knowledge of the laws affecting tracing in each country. They work to fill in the gaps where significant documents have been damaged, gone missing or no longer exist, ensuring that an Estate can be administered accordingly.
Probate genealogists are frequently instructed to take over investigations where a solicitor has begun a search but inadvertently jeopardised the beneficiary’s
indemnity insurance for example, by taking out adverts in newspapers or online. Not only does this significantly delay and complicate an enquiry by opening up the heir to future claims, but can also result in a large number of false claims, each of which requiring individual investigation and subsequent verification.

Summary

International professional probate genealogists can work alongside solicitors to relieve them of the task of tracing heirs both domestically and internationally, freeing up a solicitor’s time and resources whilst preventing the estate from reverting to the Crown. Should a solicitor still wish to go it alone, however, they will need an expert knowledge of privacy laws country-by-country, a network of tested and trusted global contacts and a great deal of patience to succeed with their search!

Daniel Curran is the managing director of Finders. Website: www.Findersuk.com

This article has been first published in New Law Journal, 10 June 2011 www.newlawjournal.co.uk