Dying intestate is the term used for a person who dies without having a Will in place. If this occurs then the deceased’s estate gets distributed according to regulations defined in the Administration Act 1969 or the spouse or defacto partner can make a claim under the Property Act 1976 (where they could be entitled to half of everything).
Who gets what?
Many people assume that if they die intestate / without a will their spouse or defacto partner will inherit everything. This is only the case however if the deceased’s has no surviving parents or children. According to the rules of intestacy a person without a will would have their estate distributed as follows:
- If the deceased has surviving children / direct decedents. Their spouse or defacto partner will get all their personal chattels, a set amount (currently $155,000) from the estate and a one-third share of the rest of the estate. The remaining two thirds would be divided between the children.
- If the deceased has no surviving decedents but their parents are still alive. Their spouse or defacto partner will get all their personal chattels, the first $155,500 of the estate and a two thirds share of the rest of the estate with the remaining third going to the parents.
- If the deceased has no surviving descendants or parents. The spouse will inherit everything
- If the deceased has no surviving husband, wife or defacto partner. The estate would go to the deceased’s children/direct decedents or their parents if they had no direct decedents. In the event that they had neither decedents nor parents then it would go to grandparents or if none then aunts and uncles. If none of these relatives can be found then the estate would go to the state.
In many of the standard Wills we are instructed to draw up for clients, couples choose to leave everything to their surviving spouse or partner. This partner would in turn leave it to their children. In some instances individuals wish to give a life interest int the family home to their surviving partner or put the assets in a trust for the benefit of the children while giving the partner the use of the assets during his or her lifetime. This is quite different to what would have happened if they didn’t have wills.
Additional stress for your loved ones
Not having a will when you die places a great deal of additional stress on a your family. They will need to decide your funeral arrangements, whether you wanted to be buried or cremated and where to bury you remains. At a time when they are trying to deal with a loss these decisions can be very emotional and difficult to make. Having written wishes makes it so much easier for them and gives them the comfort and satisfaction of knowing that they are doing what you wished. Conflicts and arguments may also arise between family members with different opinions as to what arrangements should be made or how your estate should be divided amongst your heirs. The last thing you want is your children waging war over who is going to get your lounge suite and TV! In most cases families will respect the wishes of their loved ones who have died and follow the written instructions in your will rather than argue and contest it.
Who will be the Executor / Administrator of the Estate?
In your will you would appoint an Executor of your Estate. This person would act as your personal representative and apply for probate (through a lawyer) and distribute your assets in accordance with your wishes. Usually a family member or friend is chosen for this important role, but you can also appoint a lawyer to act as executor or to act jointly with another party. If you die intestate without a Will then someone would have to apply to the Court to be appointed as an Administrator. If anyone challenges your application then the matter would go to trial to be decided. This adds an additional cost and delay in the process of applying for probate, not to mention the extra stress and inconvenience.
Guardianship of minor children
Another vital aspect of a Will is appointing guardians if you have underage children. As a parent it is very important to consider whom to entrust with this important role should something happen to you and your childrens other parent. If you die intestate without clear instructions someone would need to apply to court to be appointed as a guardian. While a Will can be contested it is more likely that your family would accept your wishes than argue over guardianship rights.
Having an up-to-date Will in place will make a difficult time much easier for your family. If you don’t already have one put it at the top of your to do list!
Please note that Wills, Relationship Property, Inheritance and Estate Administration are a complex area of law – this article is of a very general nature and is intended as a brief introduction to the topic. It does not include specifics and there are many aspects that have not been raised at all. It should therefore not be used as a basis for making decisions. Our lawyers would be happy to meet with you and give advice pertaining to your situation.
Contact the Conveyancing Shop Lawyers if you do not already have a will in place or if you would like to update your will. Call us on Auckland: 09 638 6969 or Pukekohe: 09 237 1008.