If your loved one has passed away without a Will (known as dying intestate), you won’t have any formal instructions to help you determine how to distribute their estate.
What circumstances can give rise to a person dying without a Will?
An intestacy may be caused by:-
- the Will-maker (testator) losing the original Will;
- a Will signed by a person who lacked the capacity to understand what they were doing;
- inadvertently revoking a Will; or
- failing to prepare a Will properly.
What happens to an intestate estate?
The administration of an intestate estate requires someone to take responsibility to see it through (because no executor has been appointed in a Will to apply for a grant of probate).
An application must be made that the court appoint an administrator of the estate (an application for a grant of letters of administration on intestacy). Such an application may be required where there is:
- no Will; or
- a Will, but all of the nominated executors are unable to act. The Will remains valid but an administrator must be appointed to administer the estate.
When it is necessary to apply for a grant of letters of administration, usually the person with the greatest entitlement to the estate applies for the grant. If a spouse or partner survives the deceased, they would usually bring the application.
When multiple people all think they should be appointed as administrator, this dispute will have to be resolved before the estate administration can commence.
What’s the difference between a grant of probate and letters of administration?
An application for a grant of probate is made to the court by an executor appointed by a Will. The grant of probate confirms that the Will is valid and that the executor is authorised to deal with the estate’s assets.
An application for a grant of letters of administration is usually made where there is no Will and consequently no appointed executor. A beneficiary of the intestate estate will apply to be authorised to administer the estate.
How is an intestate estate distributed?
The distribution of an intestate estate is predetermined by a statutory formula. This formula sets out who benefits from the estate and in what proportions.
A distribution determined in this way can create significant problems. Your estate may not be distributed to the ones most important to you.
What happens if I die without a Will?
If you pass away without a valid Will, a loved one or your next of kin will need to apply for a grant of letters of administration authorising them to administer your estate in accordance with the applicable formula.
Are there any disadvantages to the intestacy process?
Dying without a Will creates uncertainty and is more likely to result in a dispute. It can cause delay and additional expense if those left behind argue about whether or not the intestate distribution adequately provides for those people closest to the deceased or who should be appointed as the administrator.
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