A will is the only way a person may dispose of their property after their death. If they die without a valid will, they are said to have died intestate, and the rules of intestate succession come into play.
Under these rules, the estate passes to the deceased’s next of kin, who are often the same persons that would have been provided for under a will. However, this is not always the case, and the consequences of intestacy can be significant, including:
1. Lack of Succession and Tax Planning
A will allows a person to engage in succession and tax planning. The rules of intestacy lay down the shares in which an estate is distributed by operation of law, which may not reflect the deceased’s wishes.
For example, where a person leaves a spouse and children, half of the estate devolves upon the spouse and the other half upon the children. The deceased may instead have preferred for the entire estate to pass to the spouse, or to be distributed in different proportions.
Also, by carefully structuring the devolution of immovable property, a testator may reduce the tax burden imposed upon beneficiaries and prevent funds forming part of the estate being swallowed up by a hefty tax bill. These considerations are entirely absent in an intestate succession.
For example, a testator may opt to leave certain immovables directly to their children rather than to their spouse, so as to avoid duty on the same property being paid once on the transfer to the spouse and again on the transfer to the children.
2. Exclusion of Intended Beneficiaries
The next of kin are determined by blood, adoption, or marriage. As a result, certain persons who may have been important to the deceased do not benefit under an intestate succession.
For example, a long-term partner who is not married to the deceased, a stepchild, or a close friend are not entitled to inherit under the rules of intestate succession. Even where the deceased was bound by a deed of cohabitation, the surviving cohabitant is only entitled to remain in the cohabitation home for twelve months unless further rights are granted by will.
3. Court Intervention and Administrative Burdens
The heirs-at-law under an intestate succession often need to obtain a decree of opening of succession from court.
For example, in the absence of a will, banks will generally not release funds held in the name of the deceased, frozen as a result of their passing, other than limited amounts, without such a decree. Similarly, where immovable property forms part of the estate, prospective purchasers and lending banks may require the decree before proceeding with a transfer or loan.
Making a will allows a person to plan their succession and prevent excess taxation, unwanted exclusions, and avoidable delays. Regardless of age or the size of one’s estate, there is no disadvantage in making a will.
Ethan Brincat 