In the realm of probate, the terms ‘intestacy’ and ‘intestate’ are often thrown around. But what do they mean, and how are they relevant? The answer is that they are actually relevant to a great number of people. Here we will clarify what it means to die intestate, and how this relates to the complicated field of wills, state guardians – and eventual grants of probate.
Intestacy is the term for the state of a person when they die without having made a valid will. Further, if someone dies ‘intestate’, it means that they did not have a valid will at the time of their death. Conversely, if someone dies having made a valid will, they are deemed to have died ‘testate’ and their estate can be distributed according to their wishes.
You may think that it’s a rare occurrence that someone dies intestate, but approximately half of Australians do and have to have their estate distributed according to the laws of intestacy. Moreover, in NSW alone it is estimated that 45% of people do not have wills. This can be for a variety of reasons, including that people don’t generally tend to make wills until they’re older, have children or have another reason to, but also simply that wills are something that usually aren’t at the top of people’s lists of priorities. However, intestacy can also occur when a will that has been made is held to be invalid.
A will can be deemed invalid for the following reasons:
- The person did not have mental capacity to make a will
- It fails to properly dispose of all their assets
- It was poorly drafted and the legal rules of construction have not been followed
- The document has not been signed and witnessed according to law
If a person is found to have died intestate, it can signal the beginning of a long and complicated process.
What happens when a person dies intestate?
When a person dies intestate, the Supreme or highest Court of a State will appoint an administrator. Their job is to arrange the funeral and distribute any leftover assets after paying debts and taxes. Where there are leftover assets to be distributed an administrator has to trace the family tree. They do this to determine who the rightful heirs are. They include (but are not limited to) a spouse, child, parent, sibling, grandparent, aunt, uncle, and cousin. If there are no relatives or descendants that fit into one of these categories, then the estate will go to the Government.
If someone dies ‘partly intestate’
A will can also be found to be partly intestate, or partly testate. This is surprisingly common, as a will becomes partially invalid if any assets are properly accounted for. Subsequently, if someone makes a will, then purchases some shares (or other assets) and does not amend their will to include these, upon their death they will be partially intestate. If this occurs, the valid parts of the will are distributed as instructed, but any invalid parts or assets unaccounted have to be dealt with by the State.
It is important to not only have a will drafted (particularly where you have assets), but also to ensure that it’s amended accurately if your circumstances change. After a will has been made, it is also worth having a lawyer review it to confirm that there are no grounds for it being held to be invalid, or for anyone not included in your will to make a claim on it.
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