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Wills & Succession
4. Dying Without a Will
Authors: Savage Julia
Firm / Chambers:
Last updated: 23 Aug 2015
- If you do not make a will your estate will be administered according to what are referred to as the rules of intestacy. The rules of intestacy are followed when a person dies without a valid will (dies intestate).
- The intestacy rules prescribe who will inherit your property and it may not be the people you would have chosen for example:
- a spouse from whom you had recently separated; or
- estranged children.
- This may also lead to claims against your estate at great financial and emotional expense to everyone. One example of this is family provision claims. Fighting over a deceased relative’s estate can irreparably damage family relationships. See out topic on Family Provision Law for more information.
- Generally speaking the intestacy rules require your estate to be distributed in the following order:
- your surviving spouse and children;
- your immediate family referring to a ‘lineal’ relative such as a child or grandchild;
- your next of kin for example your siblings or parents; and
- the state.
- If you do not make a will the court will appoint someone to act as your administrator.
- This is generally a person who has an interest in the estate such as a beneficiary.
- However this may be a person you would not want to be your administrator because you believe that they are not responsible enough or you think they are capable of acting unfairly towards other beneficiaries.
- If you die without a will and have no known relatives who are entitled to inherit under the intestacy rules your estate will be administered ‘bona vacantia.’
- This means that your property will be given to the government.
- It does not matter that you have close friends that you would want your property to go to. The rules of intestacy do not recognise non-family members as potential beneficiaries.
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