You may get a windfall – if you can be found, writes Catriona Torrance
Out of the blue you get a letter, e-mail or call telling you that your long lost third cousin once removed, who never married and didn’t have children, has died. They didn’t leave a valid will and you are a potential beneficiary of their estate. Do you believe it? Possibly. Should you believe it? Perhaps – but do check it out carefully. Solicitors tracing family members who might be beneficiaries of an estate will use professional investigators whose credentials can be checked.
Contact will usually be by letter in the first instance, detailing who the investigator is and how you can check their background. The instructing solicitor’s name will also be given so that you can check this out too (all Scottish solicitors’ details can be verified through the Law Society of Scotland www.lawscot.org.uk). You will not be put under pressure and, importantly, you will not be asked for any upfront payment of fees. The fees associated with searching for heirs will be borne by the estate before it is distributed. You will, however, be asked to provide documentary proof of your ID and you can choose to provide this to the investigator or directly to the solicitor.
How would the investigator find you in the first place? Depending on who is involved in the estate administration, it’s often possible to make a family tree from discussions with the executors, neighbours, or close friends. A search of the deceased’s house may turn up address books, old letters, photos with names and dates on them. Even old birthday and Christmas cards can give leads. Once contact has been made with one or two family members, and they are confident with the integrity of the search, the investigator may then conduct face-to-face or telephone interviews to glean more information. Research is done at National Records of Scotland and similar authorities worldwide to find birth, marriage and death certificates, as well as using genealogy websites.
Once the family tree has been completed and identities of all potential beneficiaries verified, the solicitor can then determine who, according to the Succession (Scotland) Act 1964 (if the deceased was domiciled in Scotland), is entitled to inherit and can calculate the distribution of the estate at the end of the executry administration. The search for and verification of beneficiaries can be lengthy and increase the time taken to wind up the estate.
Currently, in such circumstances, the executors are required to obtain a Bond of Caution, (a type of insurance for the executor) before applying to the Sheriff Court for Confirmation to the estate. The insurers need to know that full and proper searches have been conducted, all beneficiaries identified and the appropriate executors appointed. The cost of the bond can be significant, and it adds an extra step, lengthening again the process of administering the estate. As there is now only one provider of this specialist insurance, there is no opportunity to shop around for a different deal.
What happens if there are no traceable or surviving family members? Then the estate will fall to the Crown as ultimus haeres, the representative in Scotland being the rather quaintly named office of the Queen’s and Lord Treasurer’s Remembrancer (QLTR). However, after the QLTR office has completed the estate administration, a family member can still raise a claim to the estate within the later of ten years from the date of death or two years from first advertisement by QLTR. Even if there is a valid will, solicitors may still need to instruct investigators to trace named beneficiaries if addresses given in the will are not current or if beneficiaries have died and their inheritance is to go to their unnamed children and/or grandchildren. It is so easy to keep putting it off, but please, draw up a will, review it regularly and keep it up-to-date.
Catriona Torrance is a Solicitor with Balfour+Manson