Legal Issues

What happens to my estate if I die without leaving a Will?

In the absence of a valid Will a person's wishes regarding how his or her estate is to be distributed upon their death cannot be followed.

BY TERRY PURCELL

Making a Will is an ancient right within legal systems based on English law such as those found in the various states of Australia. Dying without a Will, or ‘intestate’ to give its legal term, was seen, and is still seen to some degree, as being anti-social behaviour. Indeed during the Middle Ages in England dying intestate “became a serious sin if not a crime” which in turn led the Church in the form of the local Bishop to take control of the deceased person’s estate.

It is interesting that the Bishop’s role became an issue that was addressed by the Magna Carta, which forced a change from the Bishop administering an intestate estate, to him having supervisory rights only with the administration of the estate the responsibility of the deceased’s family and friends.

The 19th century was a time of considerable reform of much of English domestic law and the Court system, which had become unwieldy, was streamlined. The reforms included modernising rules of succession dealing with deceased estates. The legislative reforms were followed fairly promptly in New South Wales with the changes being introduced locally by the Wills Probate and Administration Act of 1898, which continues to operate today.

By failing to make a valid Will a person foregoes the right to exercise one of the basic human rights, namely to express his or her wishes on how their estate is to be distributed on their death.

So what happens if someone dies without a Will today? The procedure is not unlike that followed if there was a valid Will. That is, the approval of the Probate Division of the Supreme Court exercising the ancient supervisory role once filled by an English Bishop is required before the assets of the deceased can be distributed to beneficiaries.

In the case of a valid Will, a Grant of Probate issued by the Supreme Court is formal recognition and approval of the Executor’s right to implement the deceased‘s intentions. It authorises the executor to take control of assets as trustee of the estate, and after paying any debts, distribute the assets in accordance with the Will.

When someone fails to execute a valid Will their estate is distributed via a statutory formula intended to ensure that the needs of close family are provided for. However, this rather inflexible formula means that recipients of an estate can be people who the deceased would not have preferred or anticipated as benefiting, such as distant relations or even the government.

Those entitled to inherit an intestate person’s estate are specified in the Wills Probate and Administration Act and start with the spouse of the deceased, if there are no children of the relationship. The next class specified is the spouse and children and there is a statutory formula directing individual entitlements. If there is no spouse, the next class is the children of the deceased. If no one qualifies in these categories the legislation spells out priorities among other blood relatives starting with parents followed by siblings and in turn by more distant relatives with the government being the recipient of last resort.

As to who can apply to the Supreme Court for Letters of Administration (the equivalent to a Grant of Probate), the Act specifies those entitled to inherit under the statutory formula referred to in the previous paragraph.

In most situations, it is obvious who ought be the applicant and the first step is to retain a solicitor, assuming the asset threshold in terms of property value is reached. The Court Rules that need to be followed are not dissimilar to those applying for a Grant of Probate but more evidence may need to be provided.

The process being entered into is like a court case with the court dispensing with the need for a hearing in favour of affidavits from the parties supported by required documents to prove their relationship to the deceased and therefore entitlement to apply and inherit. Evidence will include the original death certificate of the deceased as well as marriage certificates, birth certificates and other evidence to prove that there was no Will.

If the court is not satisfied with what has been filed it will issue what are referred to as ‘Requisitions’ in which additional evidence is sought. In some instances this can lead to lengthy delays particularly when such evidence has to be obtained from foreign countries with attendant problems of different systems for recording such events as births, deaths and marriages, which in turn can be complicated by the need to obtain and verify translations etc.

Of course, if there is a dispute between potential applicants, whether there is a Will or not, then the matter will no longer be one dealt with on the documents but becomes a full blown court case with all the associated costs of legal representation and so on.

Happily most cases of intestacy can be processed by the Court relatively quickly and, armed with the Letters of Administration, the person appointed can take the steps to administer the estate by paying any debts and then distributing to those entitled.

Terry Purcell is a solicitor and principal of RetireLaw Pty Ltd, whose “Super Fast” Probate service, a sophisticated management approach to obtaining a Grant of Probate or Letters of Administration, means in most cases inheritances can be in the hands of beneficiaries in a matter of weeks not months. For further information call Terry 02 9970 0800.

Terry Purcell is a solicitor and principal of RetireLaw Pty Ltd, whose “Super Fast” Probate service, a sophisticated management approach to obtaining a Grant of Probate or Letters of Administration, means in most cases inheritances can be in the hands of beneficiaries in a matter of weeks not months. For further information call Terry 02 9970 0800.