When a person dies without a valid Will the legal term for this is “intestate.”
An intestacy can also occur if:
- A Will cannot be found
- If the Will is deemed invalid, for example - if the person did not have the mental capacity to make a Will
- If the formal requirements for witnessing the Will have not been met
- A partial intestacy can occur where there is a valid Will, but the Will does not completely dispose of the testator’s estate
Regardless of the cause, dying intestate has the potential for significant disputes between family members and can cause problems for those who are left behind.
Problems of Dying Intestate
1. Someone, usually a family member, has to be appointed as administrator of the estate. That person will require written consent from every person who also has the right to apply. For example, an adult child of the deceased must obtain the consent of his or her siblings to be appointed as the administrator. If the consent is withheld, the issue will likely have to be settled in court. This is the most common and frequent cause of intestate disputes.
2. An administrator must be bonded, unless all of the beneficiaries consent. This can cause significant hardship to a family member and again can give rise to disputes within the family.
3. The Wills, Estates and Succession Act sets out a scheme of distribution to spouses (including common-law) and children. In cases of multiple marriages and blended families, the scheme of distribution may unfairly distribute the estate and leave some family members poorly provided for.
4. If the deceased has minor children and there is no Will appointing a guardian, a guardian must be appointed by the court. Delays, costs and disputes over guardianship are more likely to occur.
5. A child of a parent who dies intestate is entitled to receive his or her share on reaching the age of majority, an age which they are unlikely to have the maturity to handle money well.
If you don’t make a Will – your estate may not be distributed in accordance with your wishes.
The above list highlights some of the main problems of dying intestate.
The uncertainties and potential issues of dying intestate can increase the delay and expense involved in settling an estate, as well as increasing the stress and pressures on family and loved ones, all of which can be prevented by a properly drafted Will and estate planning during your lifetime.