Estate administration upon intestacy
When a person dies without a will, they are said to have died “intestate” and their estate is administered “on intestacy” or “according to the rules of intestacy”. There are a number of common questions that arise about such estates, which are discussed in more detail below:
- What are the Rules of Intestacy?
Where a person has not left a will, Schedule 2 of the Succession Act sets out how an estate is to be distributed. It starts with the classes of family members closest to the deceased and moves to more remotely related family members only if there are no closer members.
For example, spouses and children will inherit and only if there is no spouse or children will siblings, parents or nieces and nephews inherit.
The application of the Rules will depend upon the exact composition of the deceased’s family and further advice should be sought about this, if you find yourself in such a situation.
- Will the government inherit an estate if there is no will?
It is a common misconception that if a person does not leave a will, then their estate goes to the government.
However, this is not strictly correct. It is true that the Crown can inherit an estate, but only if the deceased left no family members who might inherit.
Every effort is made to locate a beneficiary to inherit the estate, before the Crown will accept the gift.
- Who administers an intestate estate?
As there is no will in which to name an “executor”, the Uniform Civil Procedure Rules contain a list with the order of priority for people to make an application for letters of administration on intestacy.
Such people are called “administrators” rather than “executors” which is the term used for a person named in a will to carry out the deceased’s wishes.
- What is a “partial intestacy”?
A partial intestacy arises if a will does not effectively dispose of all of the deceased ‘s estate.
This most commonly arises where a residue clause has been omitted from a will.
In such cases, the portion of the estate not dealt with by the will passes in accordance with the rules of intestacy, rather than upon the terms of the will.