Sometimes, however, the deceased hasn’t made a Will. In that case the person is said to have died intestate, and the law steps in to say who is entitled to share the estate. These rules also apply where the deceased attempted to make a Will but it wasn’t completed correctly – unless the High Court is willing to validate the Will under the Wills Act 2007.
Section 77 of the Administration Act 1969 sets out who is entitled to benefit if a person dies without a valid Will. If there is a Will, but it only deals with part of the estate, then s77 will apply to the part of the estate not covered by the Will.
The various situations are covered in the table below.
| Person or people intestate leaves | How estate to be distributed | ||
|---|---|---|---|
| Husband, wife, civil union partner, or surviving de facto partner, but no issue and no parents | Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor's rights under that agreement |
||
| Residue of the estate: | |||
| • | this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated | ||
| • | anything that remains of the residue is held in trust for the husband, wife, civil union partner, or surviving de facto partner absolutely | ||
| Husband, wife, civil union partner, or surviving de facto partner, and issue | Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor's rights under that agreement |
||
| Residue of the estate: | |||
| • | this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated | ||
| • | anything that remains of the residue is held in trust as follows: | ||
| • | a third for the husband, wife, civil union partner, or surviving de facto partner absolutely; and | ||
| • | two-thirds on the statutory trusts for the issue of the intestate | ||
| Husband, wife, civil union partner, or surviving de facto partner, no issue, but one or both parents | Personal chattels (as defined in section 2(1)): the husband, wife, civil union partner, or surviving de facto partner takes these absolutely, except that any that are subject to a hire purchase agreement, are taken subject to the vendor's rights under that agreement |
||
| Residue of the estate: | |||
| • | this stands charged with the payment to the husband, wife, civil union partner, or surviving de facto partner of the prescribed amount, plus interest (at the rate prescribed by or under section 39) on that amount from the date of the death until that amount is paid or appropriated | ||
| • | anything that remains of the residue is held in trust as follows: | ||
| • | two-thirds for the husband, wife, civil union partner, or surviving de facto partner absolutely; and | ||
| • | a third for the father and mother in equal shares absolutely or, if the intestate leaves only one parent, for that parent absolutely | ||
| Issue but no husband, wife, civil union partner, or surviving de facto partner | All of the estate is held on the statutory trusts for the issue of the intestate | ||
| No husband, wife, civil union partner, or surviving de facto partner, and no issue, but one or both parents | All of the estate is held in trust in equal shares for the parents, but if the intestate leaves only one parent, for that parent | ||
| No husband, wife, civil union partner, or surviving de facto partner, no issue, and no parents, but 1 or more brothers or sisters (whether of full or half blood) | All of the estate is held on the statutory trusts for the 1 or more brothers or sisters | ||
| No one who takes an absolutely vested interest under the trusts referred to in items 1 to 6, but one or both maternal or paternal grandparents, or 1 or more maternal or paternal uncles or aunts (whether of full or half blood) | All of the estate is held in trust as follows: as to half: |
||
| • | in equal shares for the maternal grandparents, but if the intestate leaves only one such grandparent, for that grandparent; or | ||
| • | if the intestate leaves no maternal grandparent, then on the statutory trusts for the maternal uncles and aunts; or | ||
| • | if no maternal grandparent or maternal uncle or aunt takes an absolutely vested interest under those trusts, then on the trusts on which the other half of the estate must be held | ||
| as to the other half: | |||
| • | in equal shares for the paternal grandparents, but if the intestate leaves only one such grandparent, for that grandparent; or | ||
| • | if the intestate leaves no paternal grandparent, then on the statutory trusts for the paternal uncles and aunts; or | ||
| • | if no paternal grandparent or paternal uncle or aunt takes an absolutely vested interest under those trusts, then on the trusts on which the first half of the estate must be held | ||
| No one who takes an absolute interest under items 1 to 7 | All of the estate belongs to the Crown as bona vacantia, and the Crown may (without prejudice to any other powers), out of all or any part of the estate, provide for | ||
| • | dependants (whether kindred or not) of the intestate; and | ||
| • | other persons for whom the intestate might reasonably have been expected to make provision. | ||
If it’s likely that there is no Will, the family need to think about several possibilities:
If there are no close relatives and the estate is likely to be distributed among a wide number of family members, there may be a problem locating some of these people or even knowing if they are still alive. In some cases the administrators may need to reach agreement with the known beneficiaries
to make a distribution with a promise that if anyone else ever turns up the beneficiaries will pay back what’s necessary to give these people their share. This is usually referred to as an indemnity.
As well as working out who will be entitled to benefit from an intestate estate, a decision also needs to be made about who will administer the estate. The High Court must approve the appointment of administrators and give them a document called Letters of Administration on Intestacy. There is an order of priority for who may apply for these Letters of Administration. Basically this is the person or people who will receive most of the estate under the table on the previous pages. However, other people can be appointed administrators with the consent of the beneficiaries.
You or the estate lawyer will need to obtain specific information to enable an Application for Letters of Administration to be completed. This includes:
There will also need to be an affidavit by the person applying for administration. This affidavit will include the information established above, together with other information as required by the High Court Rules.
The documents are then filed in the High Court. Once the High Court approves the Grant of Administration, a sealed order is released by the High Court. This can take up to six weeks. Once the order is granted, the Administrator can then proceed with administering the estate.
Where there’s no executor, the court will appoint an administrator to carry out the requirements of the Will. This is called ‘Letters of Administration with Will Annexed’.
This procedure is used where a person dies leaving a valid Will but the Will doesn’t name an executor, or the executor has died or, for whatever reason, can’t or won’t apply for probate.