During a normal lifetime a person will usually accumulate significant assets either singularly or jointly with a spouse or de facto partner. These assets will include real property such as the home, bank accounts, vehicles and personal belongings such as household furniture and contents. Some people earn enough to be able to invest in shares and bonds and similar investments.
When a person dies their assets have to be dealt with. Assets held in joint names as joint tenants such as the home will automatically become the property of the surviving joint tenant such as the spouse or de facto partner.
Assets in the sole name of the deceased person will remain in their estate and will be dealt with either by their Will or if they have no Will, or no valid Will, then by the Rules of Intestacy.
What are the Rules of Intestacy?
The Rules of Intestacy are set out in legislation made by the Parliament and are fixed rules stating who the assets shall go to. Briefly, the Rules of Intestacy require that:
- Estate assets go to the spouse including a de facto spouse if there are no children.
- If there is a spouse and children then the spouse gets the household contents and the first $100,000.00 and half the rest, and the children get the remaining half.
- If there is no spouse, but there are children, then the children take the estate equally between them.
- If there are no children then the estate assets will go to parents, then to siblings, then to grandparents, then to uncles and aunties and cousins, and if there are no such surviving relatives then to the Crown or the government.
- If the deceased person left a Will, then that Will will appoint an executor who is responsible for doing what the Will says. The Will will also state who is to get the assets of the estate after all debts and expenses are paid such as the funeral costs.
What to do if you are not satisfied with the outcomes of a deceased person's Will?
Often the surviving spouse or de facto partner or a child or grandchild may not like what the Will gives them, or they may get nothing under the Will. They can seek two remedies:
- One is to assume the Will to be valid and seek greater provision from the estate on the ground that the Will makes no provision or no adequate provision for them. That claim is also called an inheritance claim and in South Australia is made under the Inheritance (Family Provision) Act. A time limit of 6 months applies from the date of the Grant of Probate which issued in relation to the Will.
- The other remedy is to attack the Will in an effort to have the Will declared invalid. This may result in there being no Will. If so, the Rules of Intestacy will apply. Alternatively, an earlier Will may exist which is not revoked by the later Will if that later Will is declared invalid.