What happens to property that isn't included in a will?

Published 21 Aug 2018

One of the most common issues with wills and estate planning is a person deciding what they want to do with their estate and then making a large purchase, such as buying another home. By failing to keep their will up to date with their changing assets, they could leave large portions of their estate sitting undocumented in their will.

For an executor, this can create an unnecessary additional challenge that they will have to manage as part of their role. It can also lead to will disputes over the assets not covered by the will itself.

Preventing partial intestacy

The official term for having assets that sit outside a will is 'partial intestacy'. This means a portion of your estate will be covered by the rules of intestacy, rather than following the distribution you have detailed in your will.

For an executor, this means they will have guidance on how these assets can be distributed. For example, if a property has been purchased jointly since a person's will was written, the property will pass to the other owner. This will commonly happen with married couples.

Children of the deceased can also receive a portion of their parent's estate not covered by the will, however this will depend on the family situation. If the deceased's spouse has outlived them, the undocumented portions of their estate will pass to them rather than their children. However, if the deceased has a child/children from a separate relationship, they will be eligible to make a claim against the estate.

Lastly, there will be cases when grandchildren, other relatives or close friends will be able to receive a portion of the estate under the intestacy rules. This can lead to a distribution of assets that is very different to what someone might have documented in their will.

There are a number of different situations and caveats that come with a case of partial intestacy, so if a relative of yours has died without covering all their assets in their will, it might be worth exploring your options to contest the will.

How can you avoid intestacy?

The best way to avoid these issues with assets sitting undocumented in your will is to review it regularly. A common timeline to use is every five years, although if you're thinking of making a large purchase like a piece of land or a home, it's a good idea to revise your will as soon as you have completed the purchase.

If you're looking to update your will, or you're looking to dispute a will, contact the team of local Paramatta lawyers at Malouf Solicitors.

Please call us on 02 8833 2000 to speak with a lawyer

I remain extremely grateful for Maloufs legal representation related to my financial management of the estate of my brother and for your continuing help and advice in this matter. As an aside, I always recommend Maloufs to my friends and family members who are seeking the best legal representation - only last week, I strongly advised a close family friend that their best interests would be served by arranging an appointment at your Parramatta offices.
John of Parramatta NSW

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