Intestacy:

Intestacy is the situation in which a person deceases without leaving a valid will. A person may die completely intestate or partially intestate, that is, where a will disposes of only part of the person’s property. In either case there are statutory rules which provide for the distribution of the person’s property in the absence of an effective will. These rules, referred to generally as schemes of distribution on intestacy, or rules of descent or inheritance of property, determine who is to receive an intestate’s property and how much each is to receive. Generally speaking, this includes any spouse/s, children and then family members by order of proximity. However, intestacy creates many problems and issues as there may be disputes as to the wishes of the deceased. This may lead to disputes and litigation should there be a challenge as to the existence of a valid will and differing views as to the true desires and objectives the deceased had in mind. A qualified Wills and Estates Lawyer will be able to adequately draft a will to ensure that the situation of intestacy does not arise. However, if intestacy does result, sound and comprehensive legal advice may be immensely valuable to ensure that your rights and entitlements or responsibilities as an executor are fulfilled.

There are various issues that may arise in the situation of intestacy. The intestacy rules act in default or absence of an effective testamentary disposition by a person. However the deceased may make a declaration that a certain person is not to benefit from the will, or that certain gifts are meant to be effected upon death. Proper legal advice from a Wills and Estates Lawyer may be greatly beneficial in the administration of an intestate estate and to protect your potential interests and entitlements.

In cases of intestacy, the Supreme Court has a discretion as to whom administration will be granted but in most cases of intestacy the court grants administration to either the surviving spouse of the deceased or to one or more of the next of kin. If there is neither a surviving spouse nor next of kin within the jurisdiction, the court has power to grant administration to anyone who in the opinion of the court is `fit to be so trusted`. The relevant statutes in other jurisdictions vary in terminology but still confer a discretionary jurisdiction on the court as to whom administration will be granted. A qualified Wills and Estates Lawyer may also be able to advise on the appropriate person to act as executor and provide sound and thorough advice regarding the rights, duties and liabilities of acting in such a role.

If you need legal advice on your matter, you may book an appointment with us by telephone on (02) 9233 4048 or by email to info@navado.com.au.

This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.