The changing face of probate genealogy

Despite changes in family structure, increased rates of divorce, children being born outside marriage and extensive cohabitation, there has been little change in who can inherit when an estate is intestate, that is, without a will. At present when no heirs can be located the intestate estate becomes bona vacantia and goes to the government. This stability in the laws of intestacy, which haven’t change since 1925, has provided a framework within which heir hunters can work and be confident of locating beneficiaries.It is possible that up to two thirds of people in Britain do not have a will and it is a popular misconception that the deceased’s whole estate will automatically pass to a surviving spouse. However as any heir hunter will tell you this is not necessarily the case and can seem unfair, as it does not provide protection for cohabitants and stepfamilies. The Inheritance (Provision for family and Dependants) Act 1975 may provide a remedy but seeking that remedy can be a prolonged, stressful and expensive experience.

If there is no will in place an unmarried partner is not automatically entitled to inherit anything as marriage takes precedence, and it is married or civil partners of the deceased, and their heirs, who are more likely to inherit.

In December, the Law Commission outlined reforms which suggested that inheritance rights would be given to the surviving partner of an unmarried couple if they had lived together for at least five years, or had a child living with them for at least two years before the death of their partner.

If these reforms are adopted the heir hunting industry will have to locate more cohabitees. A marriage or civil partnership is easy to prove, whereas co habitation involves more searching and is harder to establish, but can be done using other readily available sources. The impact on the work of those searching for and locating missing heirs will not be too great, as it is already incumbent upon a professional heir hunting company to locate all entitled heirs. This is not only a legal responsibility but claims from unknown heirs, after the estate has been distributed, are to be avoided at all costs.

Finders founder Daniel Curran suspects that, as The Law Commission’s definition of a settled relationship is rather vague, when tracing beneficiaries based on co habitation it may be necessary to ask more awkward questions and that it is likely that there will be more disputes and litigation. Finders experience with cases in the US has shown that if the definition of cohabitee is not clear-cut the settlement of an estate can be delayed for years.

Almost 60,000 U.K. marriages end in divorce each year and in second and third marriages the spouse takes priority over the children. If adopted, children lose their original inheritance rights altogrther. The new proposals suggest greater rights for children, which could lead to the search and location process becoming more complex.

It is therefore essential that thorough research is conducted and anecdotal evidence of the number of potential beneficiaries is not taken on face value. Even though a potential heir may claim to be the “only one,” in many cases there will be other heirs who are entitled to inherit. The inheritance tree can extend through, brothers and sisters to cousin’s and even further. The potential for a claim from an unlocated heir is always there and a professional heir hunting company, like Finders, will carry insurance to cover against this. Finders have arrangements with Aviva to cover risks against missing unknown heirs and missing wills.

Of course one hopes to never claim against an insurance policy so the best protection is to use an established company with experienced researchers and avoid the temptation of appointing an individual heir hunter who may be inexperienced, unqualified and uninsured.

Established probate genealogists are finding that more and more DIY practitioners are coming to them as they have misunderstood intestacy laws and failed to locate all the heirs or have found incorrect beneficiaries and do not have insurance cover because of the number of claims they have incurred due to incomplete research.

Competition between probate genealogy companies has increased, but the favoured method of charging is by a contingency fee, which is still seen as being preferable to an hourly rate. Contingency fees are fairer to the heirs as their use achieves low cost and efficient and speedy resolution especially in the case of partial intestacy.

Alternative business structures could be considered and a fixed fee may be appropriate in certain cases where certainty of cost is required. However, the number of cases dealt with by contingency fee continues to increase, with solicitors aware of the need to avoid a conflict between the duty to find all beneficiaries and the desire of known heirs for them not to be found. Even heir hunters who have campaigned against contingency fees are increasingly adopting them when locating missing heirs.

Lawyers shouldn’t fall into the trap of doing it themselves. The services professional probate genealogists offer are wider than just the location of beneficiaries. They will not only locate the beneficiaries but, verify that a will is the most current one, confirm that all the assets of an estate have been found and most essentially give the lawyer peace of mind as their work can be seen as best practice by the legal profession. The probate genealogist will also be better equipped to carry out investigative work and they are increasingly being used to value and sell assets, particularly when they are owned overseas.

So, as the industry prepares for any changes it remains as competitive as ever, and although individuals may take some work from the established companies they are producing as much when they get it wrong. Always check the credentials before appointing a probate genealogist and make sure they have that essential insurance cover.

For further information and advice contact Finders

Daniel Curran
Written by Daniel Curran
Daniel is a leading figure in the UK Heir Hunting industry. He is from Isleworth in West London and has lived in London for most of his life. He has been in the probate genealogy profession since 1990. He formed Finders in 1997 after 7 years at another firm.