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What is intestacy or dying intestate?
Intestacy means that you die without a valid will. This means you may have had a will but it is considered to be invalid by a court. This is a different meaning to dying intestate, where you didn’t have a will at the time you passed away. Dying without a will can mean that the people you want to benefit from your estate don’t necessarily.
What situations may lead to a person dying without a will?
There are several reasons why a person may die without a will or intestate. These include:
- They didn’t think their estate was big enough to make a will;
- They were scared at the thought of dying;
- They passed away suddenly before they had the opportunity to write a will; or
- They couldn’t decide what to do with some of their assets.
People may also pass away without a valid will because:
- Their circumstances have changed, perhaps they’ve remarried, and they didn’t change their will;
- Their original will can’t be found;
- They didn’t have a sound mind to make a valid will or decide what to do with their estate; or
- Their will wasn’t properly signed or witnessed.
What happens if someone dies without a will?
Dying without a will or intestate requires specific legal steps to be taken. Because there’s no will, there are no named executors or beneficiaries, so an administrator will need to be appointed by a court. This is called an application for a grant of letters of administration. Usually, this application is brought by the person who believes they have the greatest entitlement to the estate, like a partner or children of the deceased.
The administrator will be responsible for paying any of the deceased’s outstanding bills and then work out how the rest of their estate will be distributed. This may include resolving any disputes about the estate.
In Victoria, there is a specific formula that is used to determine how to distribute a person’s money if they die intestate. This may not be how the deceased would have chosen to give away their assets. Generally, assets are given to the deceased’s living relatives, like their spouse or partner, children or any other distant relatives. If a person dies without any living relatives, the administrator may give all the assets to the Victorian government instead.
Our will lawyers are based in Melbourne and Ballarat and can explain what your rights are if your loved one passed away without a will.
How does probate work without a will?
If you have an intestate estate, there is no grant of probate. An application of probate is made where there is an executor who is appointed under a valid will.
When dying without a will, someone has to apply for a grant of letters of administration. This is usually the person who believes they have the right to the estate. The letters of administration then gives them the right to administer the estate within the rules of intestacy. If no one applies for letters of administration, the court can appoint an administrator.