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What happens when a loved one doesn’t leave behind a Will?

Dealing with the distribution of a loved one’s assets after their passing can be a complicated and stressful process.

This can be the case even when there is a comprehensive Will prepared in advance which is very clear in its instructions.

So what happens if a loved one dies without having made a Will? Who gets what, and who decides?


When someone who hasn’t written a Will passes away, they are said to have died intestate.

With no Will there is the problem of how to distribute their assets among their next of kin, since they have left no instruction for how to do this.

In these circumstances, their estate is distributed according to intestacy legislation.

These are laws which define what percentage of the estate goes to certain families members, and they can differ slightly in each state.

A partial intestacy occurs when a Will is left, yet only some of the instructions under it can be carried out.

Intestacy can also occur where the Will has not been signed and witnessed in accordance with the law, where the deceased did not have the mental capacity to write one, or when the Will is poorly drafted.

How can issues arise?

Evidently, problems can arise when those close to the deceased disagree about the way that the assets are shared out.

When assets are distributed in accordance with the rules of intestacy, this can result in perceived unfairness by next of kin about their share of the estate.

It can also result in grievances on the part of those who aren’t recognised by this sort of asset distribution.

Rules of intestacy cover spouses, children, parents, grandparents, aunts, uncles, nephews and nieces, but no other people with whom the deceased may have formed strong relationships.

How legal experts can help

Contesting wills lawyers can provide legal advice on exactly what people can expect to receive under intestacy rules.

Anyone unsure about how the assets of a loved one who has died intestate are to be divided can consult these legal professionals on the subject.

They can then provide family members or others who had a relationship with the deceased with advice on what measures they can take to rectify any unfairness in the asset distribution.

Seeking legal advice about inheritance disputes can be very helpful in getting answers to the many questions which often come up at these stressful times.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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