Avoiding negligence in probate matters—no will or old will
Avoiding negligence in probate matters—no will or old will

The following Practice Compliance guidance note provides comprehensive and up to date legal information covering:

  • Avoiding negligence in probate matters—no will or old will
  • Background
  • What to do if there seems to be no will
  • Is the will the latest will?
  • Searching the safe custody wills register
  • Placing an advert for the will in the Law Society Gazette
  • Searching the Certainty National Will Register
  • Application for the issue of a subpoena to bring in a will or codicil
  • Application for order to attend for examination

Background

It is good practice to assess the risk profile of different types of work. Key risks in relation to probate work include:

  1. not proving the most recent valid will

  2. distributing the estate under an intestacy, where a will exists but adequate steps have not been taken to find it

Negligence can also arise if you fail to make the beneficiaries or administrators/executors aware of their options to check that they are distributing the correct will. This is especially important when family members suggest that the deceased died intestate.

What to do if there seems to be no will

If it appears a will does not exist you should:

  1. check that all the deceased's papers and personal effects have been thoroughly searched for a will and there is no documentation relating to a will or its whereabouts

  2. make enquiries of the deceased’s family and friends

  3. check that the deceased did not have any particular connection with a specific charity—they may have left a will with the assistance of the charity

  4. obtain confirmation in writing from all the deceased’s bank or building societies that they do not hold a will

  5. check whether the deceased ever told friends or family that they made a will or used a solicitor

  6. make enquiries of the deceased’s bankers

  7. consider a search of the safe custody wills register

  8. consider placing an advertisement for the will in the Law Society Gazette

  9. consider searching the Certainty National Will Register

  10. make enquiries of solicitors in the areas where the testator was most likely to have made their will, eg where they worked or lived—you can do