Wills, Estates, Trusts Law
How Estates Are Distributed if the Deceased Died with a Will (Testamentary)
The estate will be disturbed according to the Will with the following caveats:
All creditors must be informed of the estate distribution and all outstanding debt must be cleared before the estate distribution begins, otherwise the estate trustee will be personally liable to the shortfall;
If the testator divorced his/ her spouse before death, the spouse’s entitlement under the Will is extinguished as if he/ she has deceased before the testator, unless defined otherwise in the Will;
The spouse of the deceased has a right to elect for equalization in lieu of the entitlement under the Will. Unless a leave from Court is obtained, the spouse usually only has 6 months after the testator died to make the election (more on this topic below).
How Estates Are Distributed if the Deceased Died without a Will (Intestacy)
Succession Law Reform Act (SLRA) acts a code for distribution of intestate or partially intestate estate. If the deceased was survived by a legally married spouse and they have no surviving child, then he/ she is entitled to the entire estate.
If the deceased was survived by a legally married spouse and child(ren), then the legal spouse is entitled to a “preferential share”, the balance, if any, of the estate, is shared between the spouse and his child half and half; and if there’s more than one child, then spouse takes one-third, and the rest is divided equally among the children.
If the deceased was survived by no legally married spouse but is survived by one or more children, then the amount is to be divided between the child(ren) on a modified per stripe basis, of which each pre-deceased child(ren)’s share is to be distributed to his/ her offspring, if any.
If the deceased was survived by no legally married spouse, no off-spring, then to parents; and if no surviving parent, then to sibling, then to nephews and nieces, then to nearest next-of-kin, i.e. nearest living relatives; and if none exist, then the estate becomes the property of the Crown.
One interesting fact is that persons born inside and outside marriage, including person(s) born out of wedlock, and posthumously conceived children are entitled to share equally in an estate, whether on an intestacy or under a will unless contrary intention was expressed therein in the Will.
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