Intestacy: Dying Without A Will

Many people believe that if you die without a will, your assets will automatically go to the Crown. This is a common misconception, and most often your closest relatives will be named beneficiaries of your Estate and will inherit your assets.

However, although your family members are still likely to inherit your assets, the absence of a will does complicate matters considerably. First and foremost your assets will be divided on the basis of a pre-defined formula, which may not be the way you’d choose to distribute them. And the costs of establishing your rightful beneficiaries (which can be considerable), are likely to be taken from the estate, diluting it further.

INTESTACY: WHAT DOES IT MEAN?

A person who dies without leaving a will is said to have died intestate. In this situation, the estate will pass to the next of kin according to a statutory order.

This will also occur if the deceased has died partially intestate, which means the will only distributes part of the estate, or where the deceased has made a will but it is deemed ineffective.

The most common form of intestacy is where no will is made. In this case, letters of administration must be applied for instead of probate.

LOCATING THE WILL

On many occasions members of the deceased’s family do not know whether the deceased left a will or not. In this case, it is important that reasonable steps be taken to find the will before intestacy is declared. If the will is not found within the deceased’s personal papers, checks should be made with the deceased’s bank, solicitor, accountant or a likely trustee company.

DIFFICULTIES OF DYING INTESTATE

The most obvious disadvantage of intestacy is that the deceased has no control over the distribution of their assets. In such circumstances, the estate will be distributed among their nearest blood relatives, whether they had a close relationship with the deceased or not.

According to Victorian Law, the estate must be divided in specific fixed proportions depending upon the blood or domestic relationship between the deceased and their family members. Depending on the specific circumstances surrounding the case, the people who may be eligible to inherit the estate include:

  • A spouse or domestic partner of the deceased
  • Children of the deceased
  • Grandchildren of the deceased
  • Parents of the deceased
  • Brothers & Sisters of the deceased
  • Nieces & Nephews of the deceased
  • Grandparents of the deceased
  • Uncles and Aunts of the deceased

The court has discretion as to whom it will grant administration, but in most cases whoever has the largest share in the estate is considered the most suitable. However, if another applicant applies early and is able to take out administration immediately, that applicant may succeed.

LETTERS OF ADMINISTRATION

Letters of Administration are a court order that allow an estate to be administered when there is no will. After the proper inquiries show that no will has been left, one of the eligible relatives can apply for Letters of Administration. The process involves steps similar to those required for a grant of probate.

The following documents will also need to be filed at the Supreme Court :

1. affidavit in support of the application sworn by the person applying for administration together with a full death certificate and an inventory list of the deceased’s assets;
2. affidavit of publication and searches as to search in Registrar General’s office and Probate Office;
3. surety’s guarantee or insurance bond (if required) (see explanation below);
4. notice of motion;
5. order for letters of administration; and
6. letters of administration parchment.

As a condition of granting letters of administration to an applicant, the court, or Registrar of Probates, may require one or more sureties or an insurance bond to guarantee that they or the insurance company will cover any loss that any person interested in the administration of the estate may suffer as a result of a breach by the administrator of duties.

Intestacy can be a difficult process for relatives of the deceased. If you need more information on any of the issues raised in this article in regard to Estate Disputes or Contesting a Will, don’t hesitate to get in touch with Hentys Lawyers.

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