A what if question on wills

[dzug]

Say I make a will and leave it with a firm of solicitors. I don't tell anyone I have done this and don't keep a copy at home.

Years later I die. My relatives presumably search for a will, don't find one, and get Letters of Administration to wind up my estate on intestacy lines.

So - what is the likelihood of the original firm of solicitors spotting that they have a will for an intestate estate and what happens if they do? Presumably the estate is redistributed IAW the will - but is there a time limit on this?

[Ethel]

Hopefully the solicitor will have deposited the will with HMRC probate

http://www.hmcourts-service.gov.uk/cms/1218.ht m

[dzug]

Well hopefully - but do they routinely do that?

[Ethel]

The will should certainly be registered somewhere - there are several 'will registers' but any reputable solicitor should lodge it at probate.

Any solicitor or specialised 'will finder' service should locate it quickly and cheaply.

[sandmaster]

It is years since I updated my knowledge on this, but I seem to remember that if a will is proved and the estate is wound up that is the end of the matter. If a later will is found afterwards it will have no consequence. The law has to be practical.
I presume that this will apply if it is thought the deceased died intestate, Letters of Administration are obtained, and the estate distributed legally and wound up. The finding of a will later will probably not be of any consequence.
It would be too complicated to pull back the distributed estate especially if cash has been spent, goods sold or thrown away etc etc.

[Barmaid]

Solicitors do not routinely lodge the will anywhere. This is a common problem where solicitors' firms are wound up and original wills lost. I have had to deal with this numerous times (and it has normally resulted in my proving a copy of the Will - which clearly does not exist in these circumstances). The chances of a solicitor realising he has the will and the client may have died are unlikely unless someone does an audit of the strong room.

If a will turns up, the executors of the Will can approach the administrator and they can agree to have the original grant set aside under the Non Contentious Probate Rules and proceed to probate on the later will. If no agreement is possible, there will have to be a High Court Chancery Division action for revocation of the Grant of Letters of Administration.

The time limits that apply really depend on what had happened. If the administrator acted honestly, the time limit is 12 years (s22(1) Limitation Act 1980), but if there is a breach of trust, there is no limitation. The 12 years runs from the "date on which his right to receive the interest arises". A recent case Re Loftus states this is from the Grant, however in these circumstances, there is a reasonable argument for the time running from death.

[dzug]

Many thanks for the comprehensive answer barmaid - it's much as I thought, just wasn't sure about the period.

Can I twist the question slightly? Say my relatives DO find the copy of the will I have carefully hidden and see I have left everything to charity. Now if they pretend they have never found it and go for intestacy there is obviously breach of trust.

But can they ignore the situation entirely? That is take the view - there's nothing in this for us, why should we bother? Start returning mail 'deceased, return to sender' maybe but otherwise just walk away from the situation. Are they under any (legal) obligation to inform the executors of the death?

[Barmaid]

OK let's your relatives find a will, decide they don't like the terms and distribute under intestacy. I have seen a number of cases like this before where I have the strong suspicion that this is what has happened. Unfortunately, proving they found the will and disregarded it (and thus proving the breach of trust) is an entirely different matter. As I always say in these cases, you know your main evidential difficulty from the outset - ie the main (and best) witness is dead!! This is where lodging the original at the Probate Registry is a good move. I'd also say telling the beneficiaries under the will that they are provided for and where the original is (even providing them with a copy) is a good move.

The family are under no obligation whatsoever to inform the executors of death. As long as they don't intermeddle in the estate (ie start paying bills and finalising stuff) there is no comeback.

It is one of my big big gripes that Probate is probably the largest unregulated financial industry in the country. Anyone can get a Grant (more or less), there are no formal checks (unless you are unlucky enough to be at the receiving end of an HMIT random trawl) and whatever you swear on the oath for Probate can be an incorrect reflection of the true value of the estate. Consequently, probate fraud is absolutely rife.

[oracle39]

What if the administration had been granted and the state distributed in accordance with the will, and the only losers were the solicitors due to loss of fees, would there still be a problem? We think there is a will I recall my late mother in law saying she had made one and what was in it because its brief, and there are only two beneficaries my husband and nephew; but we cant find it and dont know who she would have made it with. We always assumed there would be a copy at home but looked high and low. So we obviously don't want to lie when asking for applying for letters of administration and say there is no Will. However we would distribute the estate as she requested her between her only son and grandson, which I cannot see as being a problem if the will does turn up. In this case the only losers might be the solicitors or whoever is the company named as executors. How are we supposed to locate them when there are so many in the area? What would happen if we have done their job for them? What are the alternative routes?