By Troy Palmer, Special Counsel and Isobel Feben, Lawyer
An intestacy commonly arises when a person dies without a valid will, or has a will which does not distribute the estate in its entirety. A strict legislative formula dictates how an intestate estate must be distributed amongst family members. Currently, if a person dies with a spouse and children, the estate must be distributed amongst both the spouse and children. This can result in surviving spouses and children suffer through a range of complex and undesirable intestacy circumstances — on top of the already heavy burden of having a loved one pass.
Intestacy is something that should be avoided for other reasons, too, including:
Accordingly, we recommend that a properly constructed will be implemented in order to avoid the above issues.
It is worth noting that the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, which comes into force on 1 November 2017, significantly overhauls how estates will be distributed on intestacy in Victoria, particularly where there is a surviving partner.
Under the new provisions, by way of summary, where a deceased leaves:
One of the more difficult issues that I have seen arise is where someone claims to have been an unmarried (de facto) partner of the deceased and other family members deny this. Such contest can result in the diminishing of estate assets in establishing the claim as well as broken relationships.
Interestingly, the base line now stops at cousins before the estate ends up with the Crown (i.e. the Government), whereas previously remoter descendants could benefit.
The disadvantages of an intestacy are best avoided by having a properly constructed will whereby you decide how your estate is distributed.