Nicholas Beetham, Title Research
1. The “Who?”
The Oxford dictionary defines genealogy as “The study of lines of descent”. Derived from the Greek (genealogia, from genea ‘race, generation’ and logos ‘account’), and pronounced to rhyme with “by analogy” rather than “anthropology”, it means different things to different people. For our purposes, it’s an essential tool for professionals who need to identify and locate missing and unknown beneficiaries or other people relevant to the trusts and estates they’re working on. Missing beneficiary problems don’t occur all that often but, when they do, whether it’s once a month (unlikely), once every nine to 12 months (maybe, if you handle a lot of estates), or once in your career (if you’re lucky), they’re usually a nuisance.
This article will look, in broad terms, at some of the principles behind applied genealogy and its benefits. It is not an exhaustive guide and should not be regarded as a substitute for taking advice from an expert firm.
Prevalence and an effect of intestacy
If you take into account partial intestacies, some part of more than 50% of estates will devolve as an intestacy. Typically, this won’t cause PRs or their advisers any real problems in terms of locating the entitled people as the next of kin could easily be in the class of the deceased’s spouse and / or issue (or perhaps parent), well known to itself and the PRs. Even if the heirs are to be found in the class of, say, the siblings of the whole blood, their might not be any real difficulty. However, it’s not that uncommon for family members to fall out with each other and for one or two alienated members to drop off the radar – which of course, does not diminish their entitlement to share in their estranged sibling’s intestate estate. If the entitled kin are more distantly related to the deceased (in the classes of, say, the siblings of the half blood, or the uncles and aunts of the whole blood – or even of the half), then assistance in identifying and, therefore, locating the beneficiaries is more necessary still.
Something to remember
This is where some PRs might consider applying to underwriters for an insured Missing Beneficiary Indemnity, rather than trying to find the beneficiaries. Even disregarding the missing beneficiaries’ entitlements, this is not acceptable to underwriters for reasons we’ll see in a moment.
The right thing
If you’ve ever had to identify and locate beneficiaries and whether or not you’ve instructed an expert, the chances are you’ll have had to deal with a family tree and – if you’ve been careful – bundles of certificates of birth, marriage and death as well as other documents. If all you have is the tree, without any certificates, all you really have is a potentially meaningless diagram.
A common misconception is that a family tree is all that is required. In fact, a family tree is evidence of nothing at all, except that someone has taken the time to draw it up. The essential information - the evidence of kinship in the correct degree between the deceased and the individuals appearing on the tree and the deceased (which is also of course the evidence of the beneficial entitlements) – is contained in the documentary record: certificates of birth, marriage and death. It’s this evidence which is probably the greatest benefit of genealogy to the probate practitioner and the PRs.
The paper trail
The deceased’s death certificate gives the date of birth, or at least the age at death, which makes finding the birth certificate easier. The name of the informant of the death is always worth noting too – is it a family member? Once you have the birth certificate, you should have the names of the deceased’s parents and can then document their births and marriage, and then look for the birth certificates of any more children of the marriage – who would be the deceased’s siblings of the whole blood (assuming they all share the same two parents). If you’re dealing with a family established at the turn of the 20th Century, it’s likely that the deceased will have had a handful of siblings.
Clearing off
If not, or if your deceased is the last survivor of them (and none has left issue), then the next class to address would be that of the siblings of the half blood – i.e. any person who shares either parent (but not both) with the deceased. So, strictly speaking, searches should be made for any other marriage(s) to which either of the deceased’s parents was a party. If none can be found, it’s unlikely that the class has any members or, if it does, that they would be able to prove their relationship to the deceased through the documentary record.
The next class of kin to consider would be that of the grandparents and, in most cases, this will be cleared off easily enough by documenting their deaths. You’ve got the deceased’s parents’ birth certificates, so you should know who the grandparents are. However, you’ll still need their birth and (certainly) marriage certificates. These will enable the reconstruction of the paternal and maternal families. The birth of each uncle and aunt of the whole blood should be documented as well as their respective marriages and deaths (assuming they’ve predeceased), as should the births of their children (the deceased’s first cousins) and, if they’ve predeceased, grandchildren (first cousins once removed) and so on.
Just to reiterate, it’s essential to obtain the certificates of birth, marriage and death wherever possible. These ensure that you’re identifying kin related in the correct degree, and also that they are the right people rather than folk with the same or similar names as the subject(s) of your enquiry.
One consequence of documenting vital events is potentially disinheriting people who may be entitled but whose entitlement (if it exists) cannot be proved through the documentary record. Consider: you are reconstructing the paternal and maternal families of your deceased. You apply for and obtain the deceased’s mother’s birth certificate which is silent as to her paternity (which happens from time to time in late Victorian and early Edwardian families). It is not possible for anyone in this maternal family to demonstrate whole-blood kinship to the deceased because the documentary link is broken. If the certificate is silent, you can’t infer any more than half-blood kinship between the uncles and aunts and the mother. This, in the presence of whole-blood paternal kin, rules out researching the maternal family at all. However, a wise PR would look for an Insured Missing Beneficiary Indemnity against anyone emerging from the maternal family who could demonstrate whole blood kinship to the deceased other than through the documentary record.
First cousin once removed? Second cousin?
It’s worth noting here that if you have a putative beneficiary claiming to be the deceased’s second cousin, he may be mistaken or not entitled or both. Second cousins are never entitled as of right under English intestacy provisions – they are outside the admitted degrees of kinship, sharing only great-grandparents with the deceased. Many people who believe themselves second cousins to the deceased actually mean that they’re first cousins once removed – who can be entitled.
2. The “Where?”
There will be an overseas dimension to many cases of intestacy. If your deceased was born in, say, 1925 and his next of kin is in the class of the uncles and aunts of the whole blood, he might easily have had 10 or a dozen uncles and aunts in total and a large number of cousins accordingly. Statistically, it’s probable that some will have emigrated – although reasonable attempts should still be made to locate the beneficiaries. Fortunately, although some jurisdictions present greater challenges to the genealogist than others, there are few countries entirely impervious to research. Just because heirs are thought to be in Australia, it doesn’t mean they can’t be found. Indeed, Australia and New Zealand have both been popular destinations for those leaving the UK and beneficiaries are regularly found in the Antipodes as well as Canada and the US, South Africa, Europe, the Far East – more or less anywhere you can think of in fact.
Foreign rules
A frequent challenge is dealing with, say, a Canadian estate, devolving according to the relevant Canadian intestacy provisions (the rules differ between some Provinces) and by reference to research in the former Soviet Union. This is because many people fled from central and eastern Europe to Canada during and after WW 2. If they die intestate, those administering the estate (often the Public Trustee) do so in favour of the next of kin entitled on the intestacy. Accordingly, it will be necessary to research the vital records in the country of origin (e.g. Latvia, Lithuania, Poland, Belarus etc) to identify the heirs entitled under the Canadian intestacy rules. Naturally, this applies to researching the next of kin of an intestate immigrant to any country, where the estate devolves according to the rules of the host country, but the research has to be done in the country of origin.
However, it’s worth bearing in mind that we are spoiled in the UK as far as the documentary record goes. We have a centralised index of births, marriages and deaths which means that we only have to look once (by the subject’s name) for each event, rather than having to search by region as well as by the subject’s name. In Canada, the vital indexes devolve to Province and Maritime level; in the US to State (and sometimes County – and, in Manhattan, Borough) level; in Australia to State and Territory level. This can make some elements of an investigation somewhat speculative (though New South Wales and Western Australia are statistically quite good bets in Australia).
3. The “How much?”
It’s a surprisingly common misconception that an estate devolving under an English intestacy to the deceased’s uncles and aunts of the whole blood which, realistically, will often end up in the hands of the first cousins once or twice removed, is divided equally between the paternal and maternal families. The correct distribution would be between all of the lines of the uncles and aunts who had either survived or had left issue who survived the deceased. Where the uncles and aunts have predeceased (as is common), each primary share is divided between their issue, per stirpes.
The rules differ from country to country and, as looked at above with Canada, within countries: The rules in California differ from those in Florida. Indeed, within the UK we have different intestacy rules – those of Scotland and Northern Ireland are different from each other and from those in England & Wales. The Isle of Man’s rules are not the same as those of the Channel Islands – which differ between some of the islands. A professional genealogist will be aware of the rules, and their implications for research, and should provide a comprehensive distribution schedule.
Amateur researcher – possibly the PR
PRs sometimes want to research the deceased’s family tree themselves, especially if they’re keen family historians (as many people are). Even if the PR has obtained all the relevant certificates of birth, marriage and death etc (and many do not…), is it safe to assume that the family tree is correct? And that it’s complete?
These are important questions and address the quality of the research and its impartiality. A PR entitled on the intestacy is arguably conflicted out of conducting the research into the missing kin for obvious financial reasons. Have all the preceding classes of kin been properly cleared off? Has the class of kin under investigation been properly researched?
Underwriters of Missing Beneficiary Indemnities often decline cases where research has been conducted in this way – they’ll only accept reports from a recognised firm of genealogists, impartial and experienced in this specialist area.
Insured Missing Beneficiary Indemnities (MBIs)
A good researcher will almost always be able to identify and locate missing heirs – or other people relevant to the estate. However, where enquiries reach an impasse, PRs can consider applying for an MBI. If forthcoming, this will indemnify the PRs in the event of any person coming forward and demonstrating that they’re entitled to share in the estate to which the MBI relates whose identity and / or whereabouts was unknown at the time of the inception of the policy and at the time of the distribution of the estate. Occasionally, PRs will look for an MBI as an alternative to searching for the beneficiaries. However, underwriters will not consider the risk until they are satisfied that the beneficiaries either don’t exist or can’t be located and will require professional research to be undertaken – which will, very often uncover the persons sought. The premium for MBI, if necessary and forthcoming, should be borne by the estate as a whole (as should the costs of research) and not be offset against particular shares in it – see Evans v Westcombe [1999] 2All ER 777.
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