Succession law, Australian

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CAUTION: Please be aware that this article is written from an Australian perspective and is, therefore, not generally true of the United States, even where it specifically refers to the U.S.


Succession Law

This area of the law governs how a person’s real and personal property is dealt with upon their death. Many jurisdictions have enacted legislation in the form of statutes or codes[1] dealing with the rules of inheritance which, together with case law, act as a vehicle for distributing property on death. Aspects of statutes and case law can vary greatly between countries and states.

Statutory provisions may stipulate requirements for making a will including the minimum age and procedures for signing, executing and witnessing a will. Other sections may deal with the property that may be disposed of by a will, the jurisdiction of probate courts, rights and obligations of executors and administrators, trusts, family provision or protection, estate administration on intestacy, payment of debts and expenses and taxation of estates.

Wills

The testator, the person making the will, may appoint an executor to administer the deceased (also known as “decedent” in the United States) person’s wishes and distribute the deceased estate in accordance with the will. If no executor is appointed under the will, then the probate court may appoint an administrator.

Gifts under the will may be specific, such as jewellery or family heirlooms. Alternatively the will may deal with the whole estate which would include all real and personal property of the testator. On the testator’s death, all property vests in the executor or administrator until distributed to the beneficiaries.

Depending on the jurisdiction, before assets may be distributed to beneficiaries, the executor is required to prove the validity of the will and obtain probate from the court. In some jurisdictions a court may dispense with execution requirements in certain circumstances. In California for instance a will that does not comply with the execution requirements may be valid as a holographic will.[2]

Intestacy

When a person dies without making a valid will, the rules of intestacy govern the distribution of assets.[3] Entitlement to the assets is normally given to the deceased’s spouse, issue, parents and/or next of kin including brothers, sisters, nieces, nephews, grandparents, uncles, aunts, cousins in the order and proportions as set out in the relevant intestacy law.[4] In California, where no next of kin is left, the decedent’s property escheats to the State.[5]

A partial intestacy can occur if a specific gift is invalid or if the will does not cover all of the deceased’s property. The property which is dealt with validly by the will must be distributed in accordance with its terms. The property the subject of the invalid gift or any omitted assets will be distributed in accordance with the rules of intestacy.

Family Provision

Many jurisdictions have provisions which enable various family members such as spouses, children and/or dependants of the deceased to make an application to the court seeking orders for their adequate maintenance and support out of the deceased’s estate. In some jurisdictions this application can be made whether or not a valid will exists, even where the rules of intestacy should have applied.[6]

  1. e.g. California Probate Code
  2. California Probate Code; s6111
  3. e.g. California Probate Code; Division 6 Part 2
  4. e.g. In Australia, Succession Act 1981 (Qld); Schedule 2
  5. California Probate Code; s6800
  6. e.g. In Australia, Succession Act 1981 (Qld); s41