Bona Vacantia-2

A closer look at Bona Vacantia: England & Wales vs. Scotland

Apr 1, 2020 9:20:24 AM

Due to differing laws, the process of claiming estates and unclaimed inheritance varies from country to country. Two great examples of this are between England & Wales and Scotland. Let’s take a closer look.

The basics -

Bona Vacantia

Firstly, what is Bona Vacantia? The literal translation of Bona Vacantia is ‘vacant goods’.

So what constitutes ‘vacant goods’? One example is estates that appear to have no known next of kin. We say ‘appear’ because there may be unknown relatives that are entitled to the estate. For instance, intestacy laws in England and Wales are very generous, particularly in comparison to other countries. Uncles and Aunts of half-blood take priority to the Crown and in practice, this means that you can have people in England and Wales that are first cousins many times removed benefiting from an estate.

In England and 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 Queen) and the Duke of Cornwall (the Prince of Wales). Additionally, the GLD also concern themselves with funds from dissolved companies and other various ownerless goods. 

Under Scots 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 Queen’s and Lord Treasurer’s Remembrancer (QLTR) and listed on the official Bona Vacantia List for Scotland.  Interestingly, the Scottish rules of intestacy are even more generous than those in England and Wales – Great uncles and aunts (of the whole, then half blood) take priority over the Crown, which means you may find second cousins many times removed benefiting from a Scottish estate. 

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:

  1. Civil partners were added to the exemption above

  2. A Bond of Caution was no longer required if the total value of an intestate estate was below £36,000

  3. 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. To the best of our knowledge, estates that are worth more than £500 are advertised on the unclaimed estates list. Historically, this occurred in national broadsheet newspapers and a new release of unclaimed estates appeared every Thursday morning. However, in our modern age, the list of unclaimed estates is updated daily and only published online.

Information related to the value of the estates was removed from the list a few years ago in an attempt to reduce the risk of fraud. The information made available to the public is minimal and typically consists of the deceased’s name, date of death and some personal information about the deceased if known.

Currently (as of 27th March 2020), there are 8,334 estates advertised as unclaimed. 

Scotland

The estate is advertised in the Edinburgh 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 QLTR. That amount is then paid into the Scottish Consolidated Fund, for the Scottish Executive to use on behalf of the people of Scotland.

As of 27th March 2020, there were 245 estates on the Bona Vacantia list and, in a similar way to England & Wales, information provided is minimal.

 

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.

 

Your options when presented with an unclaimed estate

If you’ve been presented with an intestate estate where it appears that the family is unknown and unreachable, 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 and Wales or the deceased lived within the Duchies of Lancaster or Cornwall at the time of their death.

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 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, under section 116 of the Supreme Court Act. This enables the appointed Personal Representative to realise and protect the assets and is usually also limited to instructing a genealogist to identify and locate statutory next of kin. This Grant can then be revoked and one of those located kin can be appointed as the Personal Representative to allow the assets to be distributed.

Scotland

Start by contacting the Commissary Department of the Sheriff Court in the region that 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 QLTR.

 

The Title Research approach to an unclaimed estate

If any or all of these steps fail, you could consider instructing a genealogist or speciality genealogy research firm 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 are absolutely no costs to your firm.

At Title Research, we are opposed to the use of commission fees for genealogy and people tracing and only work on a fixed fee or hourly rate basis, which will be determined by the work involved. We will never base our fees on the value of the estate or individual’s entitlement.

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 info@titleresearch.com.

Topics: news, Intestacy, Bona Vacantia