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Common misconceptions about intestacy and probate genealogy

Apr 25, 2023 9:25:29 AM

Genealogical research and intestacy are complex, and many misunderstand the laws, processes, and fees involved. In this blog, we cover some common misconceptions about intestacy and probate genealogy.


Intestacy misconceptions

Adoption and fostering are the same on intestacy

When dealing with intestacy, you might come across individuals who have been fostered. However, unless the person was legally adopted into the family, they will not be entitled to a portion of the estate. Whilst informal fostering is common, particularly in the early 20th century, these individuals will not affect the distribution of the estate. Although it may seem that this was a long time ago, when we’re dealing with an intestacy and the family tree goes into the class of aunts and uncles, it’s not uncommon to be looking at families where these aunts and uncles were born in the late 19th and early 20th century. Therefore, informal fostering still comes up fairly often, and it can be particularly challenging when there is no documentation involved.

Many don’t realise that legal adoption did not begin in England and Wales until 1927. Scotland was even later than this, with adoption being legalised in 1930.

Proving an adoption in to the family can be difficult, as tracking down all relevant certificates is often a challenge. Proving someone was adopted out of a family can be easier, as the birth certificate is annotated to indicate that an adoption has occurred.

Common law marriages are legally binding

An unmarried partner has no claim to an intestate estate. ‘Common law’ is an informal term and has no legal meaning. Some assume that this changes with the amount of time the couple has lived together; this is not the case. There is no legal status for long-term cohabitants, and they are not legally entitled. However, the surviving unmarried partner could succeed in claiming some or all of the estate using the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 as long as they can demonstrate certain requirements.

When common law marriages are mentioned to us, it makes us aware that it's unlikely we will locate a marriage certificate, and we can therefore look into other methods of discovering whether or not there were any children from the relationship.

Misconceptions about blended families, divorce, and second cousins

It has become much more common to see blended families, which can complicate distribution on intestacy. Many assume that stepchildren will be included in the rules of intestacy. However, this is not the case; only adopted or biological children (including illegitimate children) will be included.

If the class of heir is siblings, the intestacy rules in England and Wales are similar. Full siblings are entitled (if there is no living spouse, parents, or children) but half-siblings will not be included unless there are no full siblings. If the Deceased had full siblings that pre-deceased, their issue will inherit.

Click here to read our blog on the UK rules of intestacy.

Divorced spouses have no claim to an estate under the rules of intestacy. However, many assume that if the couple is separated but not legally divorced, then they will not receive anything. This is not the case; separated spouses remain entitled on intestacy if a legal divorce did not take place. Therefore, it’s important to ensure that a Decree Nisi was made Absolute. It is not necessarily a guarantee that this has been done.

Second cousins are not entitled under the rules of intestacy in England and Wales. Often, individuals believe they are second cousins, when in fact they are first cousins once removed i.e. children of first cousins. First cousins share a grandparent, whereas second cousins share a great grandparent.

If the Deceased had no spouse, issue, surviving parents, siblings (or their issue), or grandparents, whole-blood aunts and uncles are entitled to inherit. If aunts and uncles are pre-deceased, their issue (the Deceased’s first cousin[s]) will be entitled. If they are pre-deceased, their issue will be entitled, and this is the Deceased’s first cousin(s) once removed.

Second cousins can be entitled under Scottish intestacy rules, which differ from those in England and Wales. Read more about the rules of succession in Scotland.


Genealogy misconceptions

You do not need to document events

As part of employing best practice, we will endeavour to document all the events on the family tree – this includes births, adoptions, marriages, and deaths, as well as obtaining a copy of the Will and Grant of Representation (if applicable). These things all help us ensure that the family tree we are producing is accurate. Not all genealogists do so, and there are costs involved in this, but choosing not to document events exposes the estate and Personal Representative to risk.

We regularly uncover additional information that we would not have discovered had we not obtained the relevant documentation. For example, informants on death certificates can identify additional children. On marriage certificates, we occasionally find that one party was married previously, and there were children from this prior marriage that the known family were unaware of.

In one estate, we found that the Deceased’s father was married before he married the Deceased’s mother, and a son was born to this marriage. That son was still alive and was entitled to the estate in priority to the family our client was already in contact with. The family had no knowledge of this person’s existence, and had we not documented the marriage of the Deceased’s parents, this estate would have been distributed to the wrong people and been at risk of a misdistribution claim.


Instructing a professional probate genealogist

It’s essential that legal professionals ask genealogists questions about their processes, pricing, and experience so that they are in the best position to make the right decision when instructing them on an estate.

Our genealogy experience spans over 50 years and in that time, we’ve learnt that intestate estates and missing beneficiaries are not always as straightforward as they seem. If you’ve been presented with an intestacy case or an estate where genealogical research is required, we are able to help. Our services include:

To discuss our services, call our client services team on 0345 87 27 600 or fill in the form below:


Topics: Genealogical research, Intestacy, Adoption, Heir hunters