Just found out there's a will - hypothetical question

katy123

We just had a family death. There was a will but I was just thinking what would have happened ifr say we didn't locate the will (died intestate) and then years later we found the will and the assets were distributed differently to the rules of intestacy?

Keep_pedalling

It would be a right mess. The original letters of administration could be revoked, and a probate applied for. The courts could enforce the repayment of legacies from people who should not have received them, and if the estate administrator could be shown to have made insufficient effort in tracing the will, he/she could find themselves responsible for any unrecoverable losses to the true beneficiaries.

Yorkshireman99

In reality it would b very difficult for omprove the administator negligent for such action to succeed.

securityguy

Keep_pedalling wrote: »

It would be a right mess. The original letters of administration could be revoked, and a probate applied for. The courts could enforce the repayment of legacies from people who should not have received them, and if the estate administrator could be shown to have made insufficient effort in tracing the will, he/she could find themselves responsible for any unrecoverable losses to the true beneficiaries.

And then you woke up, and it was all a dream.

In the absence of gross misconduct by an obviously dishonest (as opposed to merely incompetent) administrator, that would never happen. It would be appalling bad public policy, as one or two judgements like that would see no-one willing to actually act as an administrator. The courts would only consider enforcing the repayment of legacies if there had been obvious bad faith by both the administrator and, probably, the recipient, and enforcement action would almost certainly be rejected as abuse of process unless it was for trivial sums of money.

The threshold for acceptable behaviour by administrators and executors is reasonable diligence, not endless investment of resources. When you say "could be shown to have made insufficient effort in tracing the will" what would be sufficient, and how would the administrator be expected to fund that in time and money?

Keep_pedalling

securityguy wrote: »

And then you woke up, and it was all a dream.

In the absence of gross misconduct by an obviously dishonest (as opposed to merely incompetent) administrator, that would never happen. It would be appalling bad public policy, as one or two judgements like that would see no-one willing to actually act as an administrator. The courts would only consider enforcing the repayment of legacies if there had been obvious bad faith by both the administrator and, probably, the recipient, and enforcement action would almost certainly be rejected as abuse of process unless it was for trivial sums of money.

The threshold for acceptable behaviour by administrators and executors is reasonable diligence, not endless investment of resources. When you say "could be shown to have made insufficient effort in tracing the will" what would be sufficient, and how would the administrator be expected to fund that in time and money?

I suppose the will tuning up in the deceased person's personal effects that the adminstrator had not bothered to check might be one, or failing to check with a solicitor the testator had known contacts with might be another.

katy123

Thanks for the response. Two further comments if I may:

1. It is normally the immediate family who goes through the personal belongings of the deceased, if they don't locate a will/or know one is held with the solicitor, they would simply assume died intestate (if it was never mentioned).
2. this opens up to fraud, i.e. the beneficiaries comparing whether they will be better off opted for intestacy rules or under the terms of the will.

Mojisola

katy123 wrote: »

Thanks for the response. Two further comments if I may:

1. It is normally the immediate family who goes through the personal belongings of the deceased, if they don't locate a will/or know one is held with the solicitor, they would simply assume died intestate (if it was never mentioned).
2. this opens up to fraud, i.e. the beneficiaries comparing whether they will be better off opted for intestacy rules or under the terms of the will.

This does happen. It's one reason why it's worth leaving the signed original with the solicitor and only having a copy at home.