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SUCCESSION — INTESTACY — DISTRIBUTION OF ESTATE

In brief

  •  The significance of making a will cannot be overstated. Many people, however, put off writing one because they don’t want to think about their death, or because they believe writing a will is an expensive or complicated process. Many people also believe that having a will is unnecessary because their property and belongings would be naturally passed on to their spouses and children. This article will explain why everyone needs a will and what happens if someone dies without one.

What happens if you die interstate or partially interstate? 

  •  If a deceased person has not left instructions for the distribution of some of his or her assets and properties, those assets and properties shall be distributed in accordance with the Distribution Act, 1958. According to the 1958 Act, assets are distributed differently based on the heirs or lawful family members left behind by the deceased.

Q. Assume that both spouses had passed and that they had no children. As a result, both of them possessed a property before they died, but no wills were written. How would the court address this issue in this situation?

A. In most cases, if neither person has made a written will, the court will divide the property evenly between the parents of both parties. If a person dies without a parent, spouse, or children, his inheritance will be divided among his/her siblings, grandparents, uncles and aunts, great grandparents, and great grand uncles and aunts.

. However, if a person dies and leaves the spouse, children, and parents, the spouse will receive a quarter of the remaining assets, the children half, and the parents the remaining quarter. Section 4 of the Distribution Act of 1958 covers further scenarios.

What can I do to avoid intestacy?

  •  Solicitors will normally suggest incorporating a residuary provision in Wills to avoid intestacy and prevent assets from being distributed pursuant to the 1958 Act. These are general terms that cover the remainder of your estate. In other words, this clause will cover all assets that you do not specifically specify in your Will and provide directions for their distribution or inheritance.

Example: You can direct the remainder of your estate to a nonprofit organization or a specific individual. You can also direct that your leftovers be sold and the money divided according to any formula you specify, with the proceeds going to whoever you specify as the intended beneficiaries.

  •  Another strategy to prevent intestacy issues is to transfer part of your assets and properties to your chosen beneficiaries while you are still living. While you may not want to do this with all of your properties (for example, your current home), it does minimize the number of assets you or your attorneys will have to account for when preparing your will, lowering the danger of leaving any assets for which you have a specific intention.
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