To regular members of the public, intestacy and probate genealogy laws don’t tend to creep into everyday life until someone passes away. Therefore, its standard for most people to not be well versed in such matters leading to common misconceptions about said practices. Here we cover some of the common misinterpretations with intestacy and probate genealogy.
Adoption and fostering have different laws
In cases of intestacy, you may encounter fostered individuals, but they are not entitled to any portion of the estate unless they were legally adopted into the family. The misconception is that fostering, and adoption have the same laws of intestacy. Alas, they do not! It is common to see informal fostering in the early 20th century, but this does not affect the estate’s distribution. Despite it seeming like a long time ago, when dealing with intestacy and relatives from the early 20th century, informal adoption can still be a challenge, especially without documentation.
Legal adoption only became established in England and Wales in 1927 and even later in Scotland in 1930. Proving legal adoption can be difficult, as locating all relevant certificates can be a struggle. Conversely, proving someone was adopted out of a family is easier, as the birth certificate notes the adoption.
Common law marriages are legally binding
An unmarried partner does not have a right to inherit an intestate estate, regardless of the length of the relationship. The term “common law” has no legal validity and does not confer any legal status. Thus, cohabitants have no automatic legal entitlements, even if they have been together for a long time. However, an unmarried partner can potentially make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they meet the eligibility requirements.
When referring to common law marriages, it is often difficult to produce a marriage certificate as proof. Instead, other methods must be employed to confirm the existence of any children that may have been born during the partnership.
Blended families
In todays day and age, blended families are far more common due to the rise in illegitimate children, divorce and other factors. It may be assumed that stepchildren have the same rights as adopted children or even biological ones. Unfortunately, unless they have been legally adopted or are in fact biological, they would not be entitled to an estate. The intestacy laws in England and Wales treat the class of heirs who are siblings in a similar manner. In the absence of a living spouse, parents, or children, full siblings are entitled to inherit, while half-siblings are excluded unless there are no full siblings. In instances where full siblings of the deceased have passed away, their children will inherit their share.
The rules of intestacy dictate that divorced spouses cannot lay claim to an estate. However, there is a common misconception that separated but not legally divorced couples will not inherit anything, which is not true. Separated spouses remain entitled to the estate if there was no legal divorce, making it crucial to ensure that a Decree of absolute has been made.
Extended family
In England and Wales, second cousins do not have any inheritance rights under the rules of intestacy. People may often believe they are second cousins when, in reality, they are first cousins once removed, which means they are the children of first cousins. To clarify, first cousins share a grandparent, while second cousins share a great-grandparent.
In the event that the Deceased had no spouse, surviving parents, siblings, children or grandparents, whole-blooded aunts and uncles are eligible for inheritance. If the aunts and uncles have passed away, their children (i.e. the Deceased’s first cousins) will be entitled. If they are also deceased, their issue will be next in line to inherit, referred to as the Deceased’s first cousins once removed.
Gaining documents are not required for probate genealogy (but they are greatly beneficial)
To ensure the accuracy of our family tree, we commit to documenting all relevant events such as births, adoptions, marriages, and deaths, and strive to obtain copies of wills and grants of representation. Not all genealogists practise this method due to high costs for certificates. However, we find that failure to do so may expose the estate and ourselves to risk.
We have found that ordering all relevant certificates for a case has greatly reduced surprising inaccuracies down the line. Death certificates have been particularly useful in identifying additional children, while marriage certificates have uncovered prior marriages and children unknown to the family. This in turn prevents mistakes which can easily arise due to a lack of airtight genealogy which cant be avoided without said certificates.
If you have any questions about Blanchards and the process please contact us here.
Please follow us on LinkedIn.
