If you've been conducting a little research into the subject of estate planning, there's a good chance you've come across the term "dying intestate".
What does "dying intestate" mean?
When a person dies without leaving a valid will it is referred to as dying intestate. When a person dies intestate their assets get distributed to their spouse and or relatives following the intestacy provisions set out in the Succession Act NSW 2006 rather than according to any specific wishes of the intestate person. Dying intestate can often lead to lengthy estate disputes.
When might you be regarded as dying intestate?
You can still be regarded as dying intestate even if you have created a will during your lifetime.
First, you could be classed as dying intestate if your will is not valid. This might occur if you failed to sign the document or have it witnessed by at least two witnesses, or if it's determined you did not have the legal or mental capacity to create the will at the time it was executed.
Where a will is poorly drafted and fails to follow the "legal rules of construction" or provide for an event the will or part of the will may be deemed invalid and therefore subject to the intestacy provisions. This can often be the case when people have opted to make Do-It-Yourself wills without an estate lawyer on hand to provide advice.
Finally, your will does not include all of your property and possessions, you may also be considered as dying intestate.
It is possible to die "partly intestate" if some parts of your will are declared valid while others are not. This can often lead an even more complicated division of your assets than if you had simply not created a will.
What happens to my assets?
Under the intestacy provisions the bulk of the estate will pass to your spouse or de facto spouse and thereafter to your children. If you want to ensure your children a properly provided for or wish leave anything to close friends, charities or other organisations, you need to have a valid will that expresses these wishes.
For more information about how to avoid dying intestate, call Dominic Wilson, an experienced estate planner at Craddock Murray Neumann Lawyers on 02 8268 400.