Dying without making a will (dying intestate), no matter how old you are, will leave your family and loved ones with unnecessary dramas and additional costs.
When a person who has a will dies, an application is made to the court in their state for a grant of probate. This means that the person's executor (nominated in their will) applies to the court for permission to administer the deceased person's estate according to their wishes. The court, after verifying the authenticity of the will and the executor, will grant probate and the wishes written in the will can be followed.
However, if the person who died did not have a will, an application is made for a court order that allows the person's estate to be administered in the absence of a will. The court will require proof of who the person's eligible relatives are. The person applying for the court order must provide appropriate documentation such as birth and marriage certificates, adoption certificates, and so on, to prove eligibility.
If the deceased has eligible relatives, a state based formula is used to distribute their estate among those relatives. Eligible relatives include: spouses (and former spouses), children (and step children), parents, brothers and sisters, grandparents, aunts and uncles and first cousins. Generally, the order of distribution of your estate is spouses, children, parents, brothers and sisters, grandparents, aunts and uncles, and lastly cousins.
If the person has no will and no eligible relatives (or they cannot be found), the estate will pass to the crown.
Complications often arise when the deceased has been in more than one relationship and/or have children to more than one partner. Also, if the deceased was in a de-facto relationship before they died, the court may not recognise the de-facto partner as an eligible relative unless certain conditions of the relationship can be proved, and that person may receive nothing from the estate.
Whenever there has been a breakdown in family relationships, it's likely that administering the persons estate will be a difficult period for all concerned. The whole process is greatly simplified when there is a valid will in the first place.
Kylie was 22 years of age when she died in a tragic accident. Kylie did not have a Will and her Estate received a $2M insurance payout due to her accidental death.
Because she had not made a Will, Kylie’s estate was divided with 50% allocated to each of her parents. This was even though Kylie’s father deserted the family when Kylie was six months old and did not pay a cent of child support.
The family claims there is no way Kylie would want her Dad to receive anything.
If only Kylie had made her wishes known in a will.
James was born in New Zealand and immigrated to Australia where he moved to a Queensland mining town.
James lived in a defacto relationship with his partner, Karen, for over twenty years and he helped raise Karen’s children from a previous relationship. These children lived with him until they were adults.
Sadly, Karen died before James. In her Will she left him her estate. James continued the close relationship he shared with Karen’s children for many years.
When James died without a Will, Karen’s now adult children did not receive any of his estate, including the family home where they had lived their entire lives. James’s estate was given to a brother living in New Zealand.
If only James had made a Will outlining who he wanted to receive his estate.
