How is real estate divided between beneficiaries after a Will dispute?

Published 07 Aug 2018

Navigating Wills and estates after someone passes is complex and can be frustrating for all parties involved. Sometimes Wills may specify which beneficiaries get which parts of the estate, like personal belongings or property. However, some Wills do not make this specification, and it is up to the court to decide how to divide the property.

But what happens when the real estate must be divided between multiple beneficiaries?

Division based on Will

A benefit of creating a Will before death is that property, including real estate, can be divided according to the deceased's wishes. However, disputes are still possible, as people who feel they were treated unfairly can contest a Will. This can further complicate property disputes, and will likely delay any distribution of assets.

Unless specified otherwise in the Will, property is divided equally among those next in line; for instance, all of the children would receive equal portions if there was no spouse.

Sometimes family members can come to an agreement about buying other family members' real estate under the Will, for example if one child wants control of the land or property and the others would be happy with the money. However, sometimes agreements that are made between family members can be messy and complicated, and often lead to more family disagreements about who owns what.

What if there is no Will?

When there is no Will and thus intestacy has happened, and there were no specifications as to how property should be divided, it depends on jurisdiction and what family is still alive, among other considerations. The property would then be divided among children, spouse, or other living relatives.

The complete hierarchy of entitlement is given in detail in the Succession Act 2006, but in general the order is spouse, children and grandchildren, parents, siblings, grandparents, aunts and uncles, cousins, and the state.

However, complications may arise if part of the property left by the deceased has to be taken and used to pay any outstanding debts. The first to be paid after a death are the deceased's creditors.

If you believe that you have been unfairly treated in a Will, contact our team of experienced lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to discuss all of your options.

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