Due to differing laws, the process of claiming estates and unclaimed inheritance varies from country to country. In this blog, we will be looking at examples of this in England & Wales and Scotland.
What is Bona Vacantia?
The literal translation of Bona Vacantia is ‘vacant goods’. It is the name given to any unowned property, cash, and other assets.
What constitutes ‘vacant goods’?
One example is estates that appear to have no known next of kin. However, there may be distant or unknown relatives that are entitled to the estate. For instance, the rules of intestacy in England and Wales are very generous in comparison to other countries; uncles and aunts of half-blood take priority to the Crown, which means that you can have people in England & Wales that are first cousins many times removed benefiting from an estate.
In England & Wales, the estates of people who die intestate (without a Will) and have no known statutory next of kin are administered by the Government Legal Department (GLD). The GLD administers estates on behalf of the Crown who is the ultimate heir by law. It’s worth noting that both the Duchies of Lancashire and the Duchies of Cornwall administer their estates separately on behalf of the Duke of Lancaster (the King) and the Duke of Cornwall (the Prince of Wales). Additionally, the GLD also concerns itself with funds from dissolved companies and other various ownerless goods.
Under Scottish Law, when someone dies without a Will, the Crown takes responsibility for their unclaimed assets. After this, they are put in the care of The Office of King’s and Lord Treasurer’s Remembrancer (KLTR) and listed on the official Bona Vacantia List for Scotland. Interestingly, the Scottish rules of intestacy are even more generous than those in England & Wales – great uncles and aunts (of the whole, then the half blood) take priority over the Crown, which means you may find second cousins many times removed benefiting from a Scottish estate.
What is a Bond of Caution?
A Bond of Caution (pronounced Kay-Shun) is a specific type of insurance policy that protects beneficiaries from any errors made by an Executor during the administration of the estate in Scotland. It also protects against someone applying for Confirmation (akin to the Grant of Probate in England and Wales) when they are not entitled to do so.
In Scotland, Confirmation is prepared by and obtained from the Sheriff Court. When a person dies intestate, the Sheriff Clerk will only grant Confirmation after the Bond of Caution is obtained.
Prior to the Succession (Scotland) Act 2016, a Bond of Caution was mandatory for all intestate estates except when the deceased’s entire estate was to be passed to their surviving spouse. When this Act came into force, three notable provisions were added:
Civil partners were added to the exemption above.
A Bond of Caution was no longer required if the total value of an intestate estate was below £36,000.
The Scottish government was given the power to change or abolish the requirement to find Caution.
How can you find out what estates are unclaimed?
England & Wales
All unclaimed estates are advertised by the GLD. Historically, this occurred in national broadsheet newspapers and a new release of unclaimed estates appeared every Thursday morning. Now, GOV UK regularly updates a list of unclaimed estates online, including those that have been recently referred and historic cases that are yet to be claimed.
Information related to the value of the estates has been removed from the list to reduce the risk of fraud. The information made available to the public is minimal and typically consists of the Deceased’s name, place of birth, place of death, marital status, and other available personal information.
The estate is advertised in the Gazette for two years. If the estate remains unclaimed after ten years, the assets are removed from the Bona Vacantia list and then valued by KLTR. That amount is then paid into the Scottish Consolidated Fund, for the Scottish Executive to use on behalf of the people of Scotland.
How might you be presented with an unclaimed estate?
A non-entitled relative may attempt to instruct you on an intestate estate. Perhaps a stepchild, friend or neighbour has asked you to deal with the deceased’s affairs when there was no Will, as none of these people would be entitled to extract a Grant of Letters of Administration in England and Wales or Confirmation in Scotland.
Alternatively, you may hold a poorly drafted Will that appoints an Executor and names a residuary beneficiary who has predeceased. The Will has failed because the residuary legatee predeceased without a gift over clause being included and there is no Executor from whom to obtain instruction. The estate has effectively become intestate.
What to do when presented with an unclaimed estate
Before referring the estate to the Bona Vacantia Division, you should ask yourself some questions and make your own enquiries. We advise speaking to the Deceased’s friends and neighbours and checking any address books you may have access to.
If you’ve been presented with an intestate estate and initial enquiries are unsuccessful, all efforts should be made to locate a next of kin. Here at Title Research, we can support you upon intestacy with our specialist solutions:
However, in scenarios where the family is predeceased or untraceable, what options are open to you?
England & Wales
You can refer the estate directly to the Bona Vacantia Division using the BV1A case referral form. The Bona Vacantia Division does not deal with estates where:
There is a valid Will;
There are known relatives entitled in priority to the Crown;
The net value of estate is below £500;
The estate is insolvent;
The Deceased lived outside of England & Wales; or
The Deceased lived within the Duchies of Lancaster or Cornwall at the time of their death.
If there is conclusive evidence that there will be entitled kin, even if their whereabouts are currently unknown, the Division will take no interest in the estate at all. In these circumstances, it should be possible for a law firm to successfully apply for a Grant of Letters of Administration, enabling the appointed Personal Representative to realise and protect the assets whilst instructing a genealogist to identify and locate statutory next of kin. The Grant can then be revoked, and one of the located kin can be appointed as the Personal Representative to allow the assets to be distributed.
Start by contacting the Commissary Department of the Sheriff Court in the region where the Deceased last lived. After their assessment, they will appoint a family member or loved one of the Deceased as Executor Dative for the estate, meaning that they will be the Administrator of the Deceased’s estate and will be granted a Confirmation Document. If any further clarity is required on how to proceed with the application, the Commissary Department can provide this.
Once Confirmation is in hand, the Executor Dative will be able to request the distribution of assets within the estate from the KLTR.
The Title Research approach to an unclaimed estate
If any or all of these steps fail, you could consider instructing a genealogist to help you. Our Administrator Search service is designed to help Solicitors that have become aware of a death where no Will has been left and there are no known next of kin. We will locate at least one person who is entitled to the estate so they can then instruct you to act in the administration. If we don’t manage to find you a client or they don’t instruct you to administer the estate, there is no cost to your firm.
Case study: The risk-free Administrator Search
Our professional client was approached by a man whose stepfather had recently passed away. There was no Will, and the Deceased’s spouse had died some years before; no other family were known to exist. The estate was believed to be fairly sizeable, including a property and several investment accounts and was estimated to be in the region of £850,000. Our client was very keen to administer the estate and turned to us for help. Watch the video below to find out what happened next:
At Title Research, we only work on a fixed fee or hourly rate basis, which will be determined by the work involved. We never base our fees on the value of the estate or individual’s entitlement. Learn more about how we price our support services.
If you’re interested in finding out more about Title Research’s genealogical research services, call our Client Services Team on 0345 87 27 600 or email firstname.lastname@example.org.