What happens to property when a deceased’s next-of-kin or named personal representative is uncontactable?

Last updated on October 10, 2016

There are specific people that have priority when it comes to being a personal representative of the deceased. When a Will has been written and it names a specific person to be personal representative, then this person will have priority when applying for a grant of probate. If there is no Will or no named personal representative however, the closest living next-of-kin has priority when applying for letters of administration.

There are special rules that outline the process of applying for a grant of probate or letters of administration, including which next of kin has priority. In all cases, if the person with priority is uncontactable, then this causes difficulties in the Will being executed.

Order of Priority

The following order of priority applies:

  1. The beneficiary of the deceased’s residuary property;
  2. If the above is deceased, their legal or personal representative;
  3. Beneficiaries under the Will that are the closest next-of-kin;
  4. Any beneficiary;
  5. Any creditor of the deceased; or
  6. An authorised attorney of a named personal representative (if one is named), limited by the extent of their authority.

Constructive renunciation of rights

In order to avoid these difficulties, an application may be made in Court to prove “constructive renunciation” of the rights of the person who has priority.

Procedure of the application

The initial application that must be made is a Citation that must be served on the Defendant (the person who has priority and is uncontactable). This calls on the Defendant to enter an appearance and an application of a grant of probate/letters of administration by a certain date. If there is no appearance entered by the Defendant, then they have constructively renounced their right to be the personal representative.

Consider all of the circumstances

This application is not as straightforward as it seems, it is a matter of construing the circumstances as a whole. For example, if the Defendant is uncontactable but has otherwise expressed an intention to be the personal representative, then the Defendant’s non-appearance at the Citation would not, in and of itself, cause renunciation of their rights. Their intention may be expressed by intermeddling with the deceased’s affairs as if they were a personal representative. This is especially so where the Defendant responds out of time and prior to the Plaintiff filing for letters of administration.

In any case, the Defendant may be allowed to withdraw the renunciation, if it is for the benefit of the estate or those interested under the Will or intestacy. The circumstances must be considered as a whole before making an application of this nature.

What happens if there is no named personal representative or if a named personal representative does not appear?

When the above situation occurs, and no other successful application is made by another party, then letters of administration will be granted to the person or persons that the Court considers the fittest to administer the estate.

 What happens if no next-of-kin make an application for letters of administration?

In the above situation, the Court may grant letters of administration to a creditor of the deceased. If no creditor wishes to apply, then the Court may simply grant letters of administration to whomever the Court thinks fit for the purpose.

It is important to note that in cases of intestacy, these laws are overridden by laws that apply to a specific religion or race – for example, the laws that apply to Muslims.

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