Probate

[SOD'EM]

I haven't a clue where to put this because my head is all over the place.

 

 

My father has had a stroke, and has also got pneumonia. He is now on Palliative care, so it's just a matter of time now.

 

 

My Dad was a hoarder, so there is a mountain of Paperwork for me to go through, but as far as I know, he has not made a will. He has a Daughter to a previous marriage, but she has had nothing to do with him for many years, and will probably never find out about his death. Then there is my older Brother whom himself has disconnected from our family, and he has not been seen for 15 years or more. Then there is me, the only one who had time for him, and lived nearby. For years I have practically been his carer, but not claiming anything for it.

 

 

I am the only person who has access to the property, and will have to arrange, and pay for the funeral. His house is not worth much, but is paid outright. I would think that if he had done a will, he would have left everything to me, and I doubt anybody would have contested it.

 

 

With the above information, does anybody know what happens next, and what I should do?

 

 

Thanks in advance.

[dx100uk]

panic because they are entitled to 1/3rd.

 

pers i'd get a will done

[**Tilly**]

Hi sod'em sorry to hear about your dad x you said your dad has had a stroke is he still able to communicate with you? Only asking as depending on his mental capacity whether he will be able to understand what you are asking him to sign and whether he will be able to sign the will, sorry for the questions at this time when your head is all over the place.

[Ethel Street]

Sorry to hear about this. I've just been in a similar position with my mother (although fortunately she had left a Will).

 

If there is no Will (either he never made one or you never find one) Intestacy rules apply. Search "Intestacy rules England" online and there's lots of flowcharts explaining it but almost certainly his Estate would be split between his 3 children in equal shares.

 

eg https://www.kingstonsmith.co.uk/wp-content/uploads/2016/06/Intestacy-Rules-flowchart-if-you-live-in-england-1.pdf

 

It's irrelevant that he lost all contact with one or more of them.

Whoever was appointed to manage his Estate would have a duty to try and find them.

 

Tilly's suggestion is a good one.

Get him to make a new Will if that's possible.

That will replace anything he might have made previously.

 

But he can only do this if he has mental capacity still.

I know from my own family that a stroke doesn't always result in lack of mental capacity, only physical.

 

https://www.co-oplegalservices.co.uk/media-centre/articles-sep-dec-2017/making-a-will-and-mental-capacity/

 

 

My mother's funeral was last week so I've had recent experience of organising funerals. Funeral costs are payable from his Estate.

 

If he has enough cash in his bank account when he dies you can arrange for the bank to pay the funeral director immediately (you send the invoice to the bank and they pay the FD direct).

 

My mum's was £4,300 but it depends on lots of things

- they say average UK funeral cost is £3,800.

 

If he hasn't got enough cash in bank you, as the person organising the funeral, will probably have to pay it and recover from the Estate once the property is sold.

 

Got timed out before I could add...

 

If getting a new Will made is not practical I'd start going through his paperwork now to see if I could find a Will, or any evidence of where it might be

- correspondence with solicitors or invoices for preparing a Will, letters from a document holding company etc.

 

Does he have a solicitor who he used regularly?

You could ask them if they hold it.

 

Sometimes people deposited their Will with their bank although that's not so common nowadays.

 

Solicitors or banks won't release the Will to you at the moment but should be able confirm if they hold it.

[dx100uk]

Merged and spaced for you

[Mr.P]

Tilly's suggestion is a good one.

Get him to make a new Will if that's possible.

That will replace anything he might have made previously.

 

But he can only do this if he has mental capacity still.

 

It is also strongly advisable to get a statement of mental capacity completed by a doctor or consultant at the same time a will is signed. This would knock back any accusations that the testator lacked mental capacity.

 

I would also suggest that the OP distances himself from discussions between a solicitor and the father to avoid claims of undue coercion. And please, use a proper, qualified solicitor that is STEP registered and not one of the cheap will writing outfits (or heaven forbid, a DIY job).

 

Having had to "do" probate on a family member's estate, it is shocking how quick the black sheep will come crawling out of the woodwork demanding a nonexistent share even when they have been explicitly excluded. Should it have ended up going to court, having the statement of mental capacity along with solicitor notes would have killed the case dead. As it was, the sheer cost of funding a high court claim put a stop to any action at an early stage.

[SOD'EM]

Thank you all for replying. He is Palliative care now, and has been since he was admitted. He can't communicate. or move and really has only hours left (mind you, they said that on Fathers Day and he's still hanging on). But I have been assured that he will not regain consciousness, and will never again be able to express to me his wishes.

 

 

However, I know where he wants to be buried (he bought a plot for his first wife who unfortunately died when she was 28), and will make sure that happens. I just haven't got a clue what to do then.

 

 

As I said, I can't really see any of his other children ever appearing. And if that's the case, can I do what I want with the house?

 

 

Also, without a will etc. How will anybody question anything if no other children appear?

[Ethel Street]

It's a hard situation to be in.

I was in the same place a month ago with my mother.

 

Everyone finds their own way of dealing with it.

I needed to be 'doing something' and so I started going through my mother's papers.

I knew she'd approve of me doing that had she been conscious, she always liked "her affairs to be in order".

 

What I'd be doing now if I were you is going through all your paperwork,

literally every page of it,

for any evidence that a Will was ever made.

 

Any correspondence with solicitors or banks or document holding companies about anything they hold.

Even if they hold something else, house deeds say, contact them to ask if they also hold a Will.

 

If you find nothing there's a national Wills register called Certainty which solicitors recommend checking for missing Wills (the cost can be reclaimed from the Estate) - https://www.nationalwillregister.co.uk/

 

When the end comes you can, at least, have some certainty about what to do next as far as the Estate is concerned.

If there is no Will (your father dies Intestate) then the rules of Intestacy have to be followed.

 

If there were a Will your legal power to deal with his Estate is Probate and you are his Executor.

If there is no Will your legal powers are called Letters of Administration and you are his Administrator.

 

Executors and Administrators have essentially the same powers and duties (I'm assuming you are in England - different in Scotland.)

 

You have to apply for the Letters of Administration to the Probate Registry.

Without the Letters of Administration banks will not release the money to you and the Land Registry will not let you sell the house (if that's what you will want to do). It's possible to do this yourself but there are complications with your father's Estate so I recommend you use a solicitor.

 

The complication is that under Intestacy rules the 3 children of your father are probably each entitled to one third of the Estate.

But at least one of them you do not know where they are - they are a "missing beneficiary" as solicitors call it.

 

You would need legal advice on what to do in that situation.

If you distributed the Estate and then the 'missing beneficiary' appeared at any time in the future they could sue you, as the Administrator, for their share.

 

There are ways to protect yourself against that but it needs advice from a solicitor.

You have to take active steps to find a missing beneficiary, not just wait and see if they appear.

Edited June 23, 2018 by dx100uk
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[Ethel Street]

I know your thread is specifically about the Estate, but I found the general advice on these two sites very helpful when my parents died

 

https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/what-to-do-when-someone-dies/

 

https://www.citizensadvice.org.uk/family/death-and-wills/what-to-do-after-a-death/

 

 

Also if your father's bank account/ savings accounts are with any of the main banks they have a single national point of contact for you to deal with, usually called their 'bereavement centre' or similar.

 

You don't have to go into the local branch where the accounts were held.

Look up 'bereavement' on the bank's website.

I've always found the bereavement people at the main banks very helpful and efficient.

Edited June 23, 2018 by dx100uk
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