Obstacles When Finalising a Deceased Estate When There is No Valid Will
In this article we look at the pitfalls of finalising a deceased estate when there is no valid will.
Have you ever asked your self “what happens if I die without leaving a valid Will?”
When a person dies without a valid will (intestate), accessing and managing their estate can become a complicated and challenging task. Our Melbourne lawyers have been retained to help finalise estates where no valid will exists. Thus we can attest from experience, that dying without leaving a valid will can lead to numerous pitfalls and obstacles for those left behind. Beneficiaries and administrators must navigate this complex landscape, and the route is anything but linear. Understanding these challenges can help mitigate potential issues and ensure a smoother process. Here are some common pitfalls and obstacles encountered when accessing a deceased estate without a valid will. Of course if you need to get a will prepared then speak with us.
A Will is an important legal document. It’s also one time you won’t be able to attend and present your point of view if there is perceived or real ambiguity, unfairness or conflict between beneficiaries as the process of Probate unravels. With this in mind, finalising a deceased estate when there is no valid Will, is unlikely to be straightforward.
It’s important to have a Will made when you are still of sound mind and able to think about and explain your wishes. It can be confronting as well as challenging. Moreover if family members are privy to your thoughts- conflicts and tension can arise.
Therefore, sound legal advice and impartiality are important during this process.
Through a series of questions during a meeting with you, our focus will be on helping you make some important decisions regarding assets and personal items that will be part of your estate.
Legal and Administrative Complexities of Dying Without a Will
The legal and administrative challenges facing executors can be enormous. Often someone with no experience in handling a deceased estate will be exposed to processes and demands they have never encountered, during what will most likely be an emotional time.
Identifying the Administrator
In the absence of a will, there is no appointed executor to manage the estate. Instead, a close relative or an interested party must apply to the court for Letters of Administration. This is a type of Probate which is issued if there is no Will or if the will is not valid. Examples would be that no witnesses were present or the deceased did not have the mental capacity to understand what they were doing at the time of making their Will.
This process can be time-consuming and may involve legal hurdles, especially if there are disputes among family members about who should administer the estate.
Intestate Succession Laws
Without a will, the distribution of the deceased’s assets is governed by intestate succession laws, which vary by jurisdiction. In Victoria, for example, the Administration and Probate Act 1958 outlines the hierarchy of beneficiaries. These laws may not align with the deceased’s wishes, potentially leading to dissatisfaction among family members.
Delays in the Probate Process
The probate process for intestate estates can be longer and more complex than for those with a valid will. The need to identify and locate all potential beneficiaries, conduct thorough searches for any existing wills, and gather extensive documentation can significantly delay the administration process. Thus, costs will compound.
Financial Challenges when Finalising a Deceased Estate When There Is No Valid Will
The Uncertainty of Assets and Liabilities:
Without a will to provide guidance, identifying and valuing the deceased’s assets and liabilities can be challenging. Where do you look- and importantly- what are you looking for? If nobody knows about that bank account or other asset- then it can’t form part of your estate. What you worked for, will likely go to a government authority or be snapped up by people you don’t even know. Financial records may be incomplete or difficult to access, leading to potential oversights or undervaluation of the estate’s worth.
Estate Taxes and Debts
Administrators must ensure that all outstanding debts and taxes are paid before distributing the estate. Without clear instructions from a will, determining the priority and legitimacy of claims can be complicated, potentially leading to disputes with creditors or tax authorities.
Finalising a Deceased Estate When There is No Valid Will Raises Emotional and Interpersonal Challenges
Family Disputes
The absence of a will often leads to family disputes over the distribution of assets. Conflicts may arise regarding who should act as the administrator, the fairness of the intestate succession laws, and the valuation and allocation of specific assets. These disputes can delay the administration process and strain family relationships. Everybody will seem to know exactly what “the deceased would have wanted”, when in fact they have little or no idea.
Lack of Clear Wishes
Without a will, there is no clear indication of the deceased’s wishes regarding the distribution of their estate. This can lead to emotional distress for family members who may feel uncertain about how to honor their loved one’s legacy appropriately. Again what “the deceased would have wanted” gets brought into discussions.
Beneficiary Identification
Identifying and locating all potential beneficiaries can be a significant challenge. In particular, having to track down relatives within large or estranged families can be tme consuming. Also, failing to identify all beneficiaries can result in legal complications and potential claims against the estate.
Practical Obstacles
- Access to Digital Assets: In today’s digital age, many assets and important information are stored electronically. Without a will providing access authorisation, administrators may struggle to access online accounts, digital currencies, or important documents stored in the cloud- if they can ever access them at all. Depending on the nature and size of the asset, this could represent a significant amount of money or value.
- Managing Physical Assets: Handling physical assets such as real estate, vehicles, and personal belongings can be cumbersome without specific instructions. Platforms are not obliged to co-operate and quite often there’s simply no-one to call. Determining the fair distribution or sale of these items can be contentious and logistically challenging.
- Legal Compliance: Ensuring compliance with all legal requirements and deadlines is critical in the administration of an intestate estate. There are taxes, debts, government agencies as well as compliance requirements to manage. Without the guidance of a will, administrators may find it difficult to navigate the legal landscape. As a consequence, the risk of errors and potential legal repercussions increases substantially.
Finalising a Deceased Estate When There is No Valid Will Has the Potential to Cause Havoc
We urge you to speak with us and have a Will made. Administering and finalising a deceased estate when there is no valid will is fraught with pitfalls and obstacles that can complicate and delay the process. From legal and financial challenges to emotional and practical difficulties, navigating these issues requires careful planning, clear communication, and often professional legal advice. Understanding these potential challenges can help administrators and beneficiaries prepare for and manage the complexities of intestate estate administration, ultimately leading to a more orderly and respectful resolution of the deceased’s affairs.
