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What happens if I die without a will?

Published in August 2022

The best way to ensure that your assets are given to the right people or organisations when you die, is to set out your wishes in a Will. This important document will set out who will be in charge of sorting out or distributing your estate after you have gone.  And having a will ensures your wishes can be administered by your executor in accordance with those clear instructions leaving less room for disputes.

If a person has not a left a will, then they die "intestate", simply, dying without a will. This means that the deceased’s estate comes under the Administration Act 1969 which sets out how the deceased’s assets are distributed and to whom. If the deceased’s assets are worth less than Prescribed Amount ($15,000.00 under that Act) then the deceased’s partner, child or another family member can administer the estate. If, however the value of the estate assets is more than the Prescribed Amount then Letters of Administration is required in order to distribute the assets.

Letters of Administration

Letters of Administration is the formal process of applying to the High Court to have an Administrator appointed to administer an estate.

This application is preceded by a process of searching and advertising for a Will that may be held somewhere unbeknownst to the deceased’s family.

How do you apply for Letters of Administration?

If no will is discovered,  then you must apply to the High Court for Letters of Administration. This process will allow the applicant(s) or the nominee(s) of the applicant(s) to gain the legal authority to be the administrator of the deceased’s estate.

There are number of requirements you will need to demonstrate in order for the court to grant you the necessary legal authority. First you will need to show that you have agreement from the deceased’s other family members at the same level of kinship or closer (i.e., your siblings), that you should be the administrator. You will also need to demonstrate you have gone through the above process of searching for the deceased’s will and been unsuccessful. Finally, you need to produce evidence of the relationships between the deceased and the main beneficiaries, and that all the deceased’s children have been accounted for.

It is also highly recommended that you use a lawyer for this process to ensure all requirements are met and to avoid any costly mistakes that could cause your application to fail.

Who can be an Administrator?

To be eligible to be an administrator you will likely have to be the next of kin (i.e., partner, child) or you have agreement between other family members on the same level of kinship (i.e., you and your siblings are to agree) that you are to apply.

Administration with no adult next of kin

Letters of Administration can be a difficult and drawn-out process at the best of times, but what happens when the deceased’s next of kin is a minor and there are no other kin to apply to account for their beneficial interest in the estate? Is it possible for someone to apply on behalf of the kin?

There have been a number of court decisions that shed light on this unique set of circumstances. The courts have stated that if the next of kin is a minor then their appointed guardian, who the minor can choose with the assistance of the court or can be appointed by the court outright, will become the administrator and apply on the minor’s behalf. They will essentially administer the estate on trust for the benefit of the minor until they reach 18 years of age at which time they will apply and administer the estate themselves.

Letters of Administration can be a very costly and time-consuming process and your assets may not be given to the people you would like them to go to, as the Act prescribes a formulaic approach to the administration of your estate giving each beneficiary equal portions to those entitled under the law instead of what your wishes may be.

The best option for making sure your wishes are followed is to prepare a will which sets them out in details.

For assistance with your estate planning matters, please contact Mason Lockhart or Josh Muir.

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