What is Intestacy?

You are considered to have died Intestate if you die without a Will or leave a Will deemed by the courts to be ineffective because it: fails to properly dispose of all your assets, does not met the legal formalities of being correctly signed and witnessed, or was made by someone who lacks legal capacity. Where part of the Will is valid but part is invalid a person is considered to die partly intestate resulting in greater difficulty than administering a fully intestate estate.

If you die and your family does not know that you have left a will or cannot locate it they would need to check your personal papers, bank, solicitor, accountant or all of these. In some circumstances they may need to advertise in order to try and locate it.

If a Will cannot be found your relatives will have to apply to the Court for an administrator to be appointed to administer your Estate. Courts have a broad discretion to appoint an administrator, in most cases whoever has the largest share in the estate is considered the most suitable. Administration of your Estate includes making funeral arrangements, collecting assets, paying any debts and taxes owed by the Estate and then distributing any remaining funds. As your assets will be distributed according to legislation the administrator must establish the next of kin.

Although you may feel that the Laws of intestacy may be suitable in directing your estate you have no control as to who benefits, as the estate must be divided in specific fixed proportions depending upon the family, or domestic relationship between you and your family members. In many cases a person who can prove that they are the de facto or same-sex partner will be considered to be the spouse of an intestate partner and may displace the entitlements of a spouse. In certain circumstances “Children” include illegitimate children.

If the next of kin is a child or an incapable person the Court may require  an administration bond to guarantee any loss should the appointed administrator fail to properly administer the estate. The bond is usually equal to the value of the estate being administered.

It should be noted that the assets of the intestate, such as a specific piece of jewellery, may have to be sold in order for the estate to be distributed under administration. You cannot rely on the laws of intestacy to provide specific gifts for friends, charities or to leave provision for pets. Therefore it is important to make a Will in order to leave provision to those people, charities or pets, that you want to, instead of leaving it to a predetermined legislative formula.