We are often asked by clients what they need to do in the first few days or weeks following the death of a family member or friend and the first step is always the same.
It is essential to ascertain very early on whether there is a Will – whether there is or not will determine if individuals need to act as administrators and administer the estate in accordance with the intestacy rules or act as executors and administer the estate in accordance with the Will itself.
Establishing whether there is a Will also determines who will inherit the deceased’s estate i.e., who the beneficiaries are.
So, the initial step is look for a Will
The obvious place to look is the deceased’s home and amongst their paperwork.
A Will may not always be marked up as obviously as you might think and could be less than a page in length. It is important to look very carefully to ensure you haven’t missed what could simply be a sheet of paper.
The original Will should bear the deceased’s “wet ink” signature as well as those of the two witnesses. It is common, however, particularly if a solicitor prepared the Will for the original to be stored with the firm and the deceased to simply have a photocopy of the signed Will at home. You will eventually need to obtain the original.
If you cannot find an original Will or a copy of it, you may instead find a draft, unsigned version. This may have been sent to the deceased from a firm of solicitors. If so, look for any other letters from a solicitor (or will writer). The letters would normally be on the firm’s letterheaded paper, contain a reference number and, of course, contact details.
Get in touch with the solicitors and request they confirm whether a Will was ever prepared and signed with their assistance.
If the deceased had several properties or a business, it is also a good idea to ensure these additional properties or business premises are searched.
Ask friends and family
Whether you do find a Will or not amongst the deceased’s paperwork it is still always a good idea to speak with other family members or close friends of the deceased to check whether they have any information that may suggest there is a later Will or a Codicil. A Codicil is a document prepared in order to make changes to an existing Will. If there is a Codicil then the deceased’s last “Will and Testament” will consist of both the Will and the Codicil and both must be secured. It is possible to have more than one Codicil.
If the deceased had an accountant or financial advisor for example, we suggest you also contact them. They may know more than friends and family about the deceased’s arrangements.
What if you still can’t find a Will?
It is important you start thinking about taking other reasonable steps to assure yourself there isn’t one.
You could instruct a search agent who will carry out the above steps either for you or in addition to you, just to be sure.
They can also make enquiries with local solicitors and go further afield, if necessary, for example, if the deceased previously lived in a different area of the country.
An agent may also commission a Will search via a national Will Register. These searches aren’t conclusive as it is not legally required to register a Will on a register of this nature. A negative result for a Will on the register is not evidence in itself that there is no Will but is further evidence that there isn’t one in place.
What do you do next?
If you do find a Will, the next step is to be sure that it is a valid Will. If a solicitor did prepare it and supervised the signing, it is highly likely there will be no issues with validity. However, if the Will was prepared at home by the deceased, the situation may be very different. We suggest you seek specialist advice, and our private client team can help in those circumstances.
Establishing whether there is a Will or not and whether it is valid is essential in all cases. You need to have taken reasonable steps in all the circumstances to satisfy yourself that either there is no Will or if there is one, that it is in fact the last Will.
Administering the estate incorrectly can be costly for you personally so always best to be sure.
If you have any questions or you want to make your own Will, contact the Private Client team.