Rules of Intestacy

When is there intestacy?

A person will die intestate where he or she has left no effective will to dispose of his or her estate, or has made a will that does not dispose of a part of the property of the estate. The estate of a deceased person may be wholly or partially intestate. A partial intestate estate occurs when only parts of a deceased’s assets are disposed of by their will.

An intestate estate will be wholly intestate if the deceased:

• Dies without having executed a valid will; or
• Makes a will which cannot be admitted to probate as its execution has been obtained by duress, coercion, undue influence; or
• Lacks testamentary capacity.

A partial intestacy only affects the property not disposed of by will. Usually a partial intestacy occurs due to:

• Poor drafting and/or defective execution, i.e. an incomplete will has been drawn up, that does not take into account all of the property of the person;
• A particular bequest or gift made by the will is invalid;
• A beneficiary predeceasing the testator;
• The operation of the doctrine of forfeiture.

In circumstances where there is no valid will, the legal personal representative of the deceased is an administrator appointed by the court. Generally, that person is the major beneficiary, or a beneficiary who has the consent of the other beneficiaries.

So if intestacy occurs it is important to contact a lawyer in order for the person’s property to be distributed.

Who gets the property?

The property of the intestate is to go to the nearest living relative. The priority order is rather complex and must be discussed with your solicitor.
If you would like more information or advice on Intestacy or another Wills & Estate enquiry, please complete and submit the express enquiry form on the top right hand side of this page or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.