How do you know if a will was made

pothole50

My father in law passed recently, and his wife has early stage dementia, her short term memory is not too good. To release my father in laws assets from the Nationwide, they told us to get a Grant of Administration letter, so they can transfer the money into his wife's account. But this needs to be done by the next of kin his wife, but we don't think she has the mental capacity to complete this. We had a free legal consultation with a solicitor, who now tells us, that we could just try for the Grant of Administration and get his wife to sign the papers, but as soon as she has to swear the oath, the probate or solicitor will see she is not capable. So the only option open to us is the Court Of Protection route, which could take 8 months. What she did mention was has a will been made, my wife who knows her dad well did not think that he would have made one, but it's worth a try to see if he had. So my question is who would I need to contact to see if a will had been registered, I personally don't think he had one as executors would have to be named, and all he had was his wife and two daughters, but you never know.

pmlindyloo

pothole50 wrote: »

My father in law passed recently, and his wife has early stage dementia, her short term memory is not too good. To release my father in laws assets from the Nationwide, they told us to get a Grant of Administration letter, so they can transfer the money into his wife's account. But this needs to be done by the next of kin his wife, but we don't think she has the mental capacity to complete this. We had a free legal consultation with a solicitor, who now tells us, that we could just try for the Grant of Administration and get his wife to sign the papers, but as soon as she has to swear the oath, the probate or solicitor will see she is not capable. So the only option open to us is the Court Of Protection route, which could take 8 months. What she did mention was has a will been made, my wife who knows her dad well did not think that he would have made one, but it's worth a try to see if he had. So my question is who would I need to contact to see if a will had been registered, I personally don't think he had one as executors would have to be named, and all he had was his wife and two daughters, but you never know.

Some ideas in this link about where to find a will:

https://www.citizensadvice.org.uk/relationships/death-and-wills/wills/

Scroll down for the in formation

Yorkshireman99

pothole50 wrote: »

My father in law passed recently, and his wife has early stage dementia, her short term memory is not too good. To release my father in laws assets from the Nationwide, they told us to get a Grant of Administration letter, so they can transfer the money into his wife's account. But this needs to be done by the next of kin his wife, but we don't think she has the mental capacity to complete this. We had a free legal consultation with a solicitor, who now tells us, that we could just try for the Grant of Administration and get his wife to sign the papers, but as soon as she has to swear the oath, the probate or solicitor will see she is not capable. So the only option open to us is the Court Of Protection route, which could take 8 months. What she did mention was has a will been made, my wife who knows her dad well did not think that he would have made one, but it's worth a try to see if he had. So my question is who would I need to contact to see if a will had been registered, I personally don't think he had one as executors would have to be named, and all he had was his wife and two daughters, but you never know.

The children can apply for LOA. If they send the application as usual and include a covering letter explaining the circumstances the Registrar will usually appoint them as attorneys for the purpose. This takes longer than the normal timescale If someone has a LPOA for the parent then they can apply as attorney.

Keep_pedalling

You say she has early stage dementia, if this only effects her short term memory and not her ability to make decisions for herself then don't waste any time in sorting out a LPA for her, otherwise you are going to have great difficulty managing her finances as her dementia gets worse.

Once she is incapable of setting up an LPA, you may be forced to go down the protracted and expensive route of having to apply for deputyship via the court of protection,

Yorkshireman99

Keep_pedalling wrote: »

You say she has early stage dementia, if this only effects her short term memory and not her ability to make decisions for herself then don't waste any time in sorting out a LPA for her, otherwise you are going to have great difficulty managing her finances as her dementia gets worse.

Once she is incapable of setting up an LPA, you may be forced to go down the protracted and expensive route of having to apply for deputyship via the court of protection,

If she is incapable of applying for probate then how can she be competent to give POA?

NordicNoir

As Yorkshireman99 has already said, children are allowed to apply for Letters of Administration - did the solicitor say why, in your case, it was not possible for your spouse to apply in their name?

[Deleted User]

Just out of curiosity, what happens if a will is discovered after the estate has been distributed according the intestacy rules?

securityguy

Yorkshireman99 wrote: »

If she is incapable of applying for probate then how can she be competent to give POA?

Because "competence" depends on the situation.

To actually carry out duties as an administrator requires different cognitive abilities to giving power of attorney. For the latter, it is sufficient that a suitably qualified person will attest that they were capable of understand the implications at the time, and if they couldn't remember a day later, it didn't matter. An informal judgement by the family that someone wasn't capable of acting as an administrator doesn't overturn that. If you can get appropriate people to agree to competence at the time of signature, that's pretty much the end of it. Early, or indeed relatively advanced, dementia may not be a bar to that, depending on the precise nature of the cognitive decline. It's not uncommon for people to be capable of relatively sophisticated intellectual debate, but not remember it an hour later: that would be fine for signing an LPOA, but probably make acting as an administrator [STRIKE]perfectly OK[/STRIKE] (edit to correct to:) very difficult.

A relative of mine did both financial and health and welfare POAs after a formal diagnosis of dementia, in a fairly rapidly advancing and already advanced form. The people that signed off her competence for the POA were suitably qualified professionals, and the POA was accepted for all the purposes one might to use it once she completely lost capacity.

Yorkshireman99

jack_pott wrote: »

Just out of curiosity, what happens if a will is discovered after the estate has been distributed according the intestacy rules?

This gives a good idea.

https://www.simplifythelaw.co.uk/private-client/post-death-arrangements-and-probate/will-discovered-late

pothole50

MichelleUK wrote: »

As Yorkshireman99 has already said, children are allowed to apply for Letters of Administration - did the solicitor say why, in your case, it was not possible for your spouse to apply in their name?

The solicitor said nothing about my wife not being able to apply for the letter of administration, we just assumed from what we had read on the Internet and this forum, that the next of kin was his wife, and she had to apply for it. It would make life so much easier if we could sort it out for her and get his money transferred over to her account, but the last thing we want to do is break the law, we have enough stress trying to sort mum and the funeral out.

securityguy

pothole50 wrote: »

The solicitor said nothing about my wife not being able to apply for the letter of administration, we just assumed from what we had read on the Internet and this forum, that the next of kin was his wife, and she had to apply for it. .

No. If both his wife and his children apply, then all other things being equal the wife will become the administrator. It's an order of precedence. If someone dies intestate and their spouse can't administer, won't administer or indeed flatly refuses to discuss administering the estate, other people can do so, all the way down to "anyone who has a debt owed".