Pitfalls of dying intestate

Date: Oct 30, 2012

If you have not made your will yet then estate planning should be your first order of business. Dying intestate is a very complicated and unnecessary situation that can be avoided through a simple meeting with a lawyer who can help you make your will.

If a loved one dies, be sure to check spots that people traditionally keep their wills or look in places where you think your friend or relative would hide important documents. Check with their bank, lawyer, accountant or in their personal safe to determine whether or not they have a will.

Should they die without a valid will, there are a number of things to address in order to ensure your loved one's property is distributed lawfully.

Generally anyone who is willing to fill the role of the administrator who is over 18 and is entitled to a share of the estate can apply with the Supreme Court of your state for Letters of Administration.

A formula is used to ascertain who is legally entitled to the assets that the deceased possessed after any taxes and debts are paid. Legislation referring to the percentage of the estate that a next of kin is entitled to differs from jurisdiction to jurisdiction.

In New South Wales, laws came into effect in 2010 that stipulate that any next of kin who could benefit from an estate had to survive the intestate by 30 days.

If someone who dies has a de facto partner at the time of death and a spouse and children, the partner and the spouse will receive all of the estate. Families can be much more interwoven and complex. Wills are very important to ensure that estate disputes are contained as much as possible.

Not having will can open a floodgate of requests to a portion of the estate as for example, any charity that the individual volunteered for or made donations to may be entitled under intestacy laws to claim some of the estate.

Because laws surrounding intestacy are meant to cover everyone, the sad fact is that they may not cover everyone's circumstances. This is why a will is a very important legal document that not only provides for loved ones, but saves them the anguish of mourning a loss and dealing with legal issues simultaneously.

Talk to a wills and estate lawyer for advice and service surrounding estate planning issues.