Losing a loved one who doesn't have a will can become a complicated mess for the surviving family. Photo/Getty Images.
Losing a loved one who doesn't have a will can become a complicated mess for the surviving family. Photo/Getty Images.
Q. My partner of 10 years died unexpectedly a couple of months ago and did not have a will. We own a house together and some other assets. She has three adult children from a different relationship, and we all get on well. They all have good careers and their own homes. I was planning to stay in our house but leave half to her children when I pass away. I invited them to take my partner's art collection now, so they can enjoy it. However, they are not able to agree on who is taking what. One of them also wants to take some of the antique furniture, which she said had been promised to her and another is asking about the life insurance. Everyone is getting a bit stressed. What happens when there is no will?
A. Dying without a will
When someone passes away and has not prepared a will it is called dying "intestate". Before anything can move forward, the court needs to be satisfied there is in fact no will.
It would be a good idea to try contacting any professionals who may have assisted your partner in preparing one - perhaps she had a regular lawyer who dealt with her affairs. You could look through all her paperwork and ask her friends or relatives if they know whether a will was prepared.
If your partner prepared any document that communicated what she would like to happen with her estate, it is sometimes possible to apply for such document to be validated by the court as a valid will. The "document" does not necessarily need to be on paper, so text messages and instructions to her lawyer could all be helpful.
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Usually an executor will be appointed in the will to manage the estate. If there is no will, then the equivalent role is called an administrator.
Their role is to determine what assets make up the deceased's estate, sell any assets, settle any debts, close bank accounts, pay taxes, redirect mail and generally organise the estate so it can be distributed.
It is a time-consuming job and most situations require some financial knowledge, as well as the ability to act with sensitivity and fairness.
You would need to apply to the court to be appointed as the administrator. As the partner of the deceased, you are probably in the best position to do this and would likely be appointed even if one of your partner's children wanted to do this role themselves.
However, there can be conditions attached to your appointment. For example, if you and your partner entered into any sort of agreement in which you were deprived of any interest in your partner's property (e.g. a relationship property deed of arrangement), you probably will not be entitled to the administration grant. The right to administration will probably then pass to your partner's children, due to their right to benefit from their mother's estate.
What happens to the house and life insurance?
Whether your home will form part of the estate will depend on how it is owned. If the property is registered in the joint names of you and your partner (as opposed to being registered in your names but with a percentage share each), then it will automatically be transferred to you, the surviving partner. This is called "survivorship". This means your home won't form part of your partner's estate.
Signing a will is important in giving certainty to your successors. Photo/Getty Images.
The treatment of life insurance proceeds will depend on the policy. When people take out life insurance, they often specify their partner as the beneficiary. If this is the case, then the money will belong to you and will not form part of the estate. If there is no named beneficiary, then the money will be added into your partner's estate to be shared out.
Who will benefit from the estate?
If there was a will (or if a document can be recognised by the court as a will), then this would specify how the estate should be shared. If there isn't, then the Administration Act 1969 sets out who will inherit from an estate and in what proportions.
The act dictates that when someone has a partner and children but no will, then their partner is entitled to their personal chattels and payment of $155,000. If there is anything left after that, it is divided one-third to the partner and two-thirds to be shared equally between the children.
The personal chattels are all of your partner's possessions, including the artwork, furniture, jewellery, books and anything of a household or personal nature. You are not legally obliged to share these with anyone, although special items are often shared with people who were close to the deceased.
The two-thirds right for the children is often a surprise. This right is automatic when there is no valid will.
In certain circumstances, your stepchildren's father might also be able to make a claim. Such a claim can arise when your partner and the children's father haven't legally divorced or formalised a separation agreement. Failure to address assets appropriately on separation, such as KiwiSaver funds, can give rise to some very unpleasant outcomes.
Even if a document can be located and declared to be a valid will by the court, it should also be noted that the children would have the right to lodge a claim against their mother's estate, with success now common. From the time that the court issues letters of administration to the approved administrators, the first deadline for raising such a claim is six months after the date that the letters of administration are granted.
Your will
If you want to leave half of the house to your partner's children, then you should specify this in your will, and you should involve them in your commitment to do this. Then in the likelihood that they contact a lawyer, there is a binding arrangement in place to protect them. If there are any other chattels you would like to leave to them, such as artwork, furniture or other mementos, you can note these in your will as well.
Conclusion
When someone passes away with no will in place, it makes a difficult situation even more so, for those left behind. There are additional legal hurdles to overcome and the lack of clarity around the deceased's wishes can create conflict between family members.
I strongly encourage people to prepare a will and to keep it updated for any life changes. When blended families are involved, a relationship property agreement should also form part of your "must have" documents.
Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures. www.jeremysutton.co.nz
