The Succession Estate And Intestacy

Question 1

What are the two key issues to consider when a person dies?

Answer 1

1. Whether the deceased left a valid will. 2. The nature of the assets owned by the deceased.

Question 2

What is a testator?

Answer 2

A person who has left a valid will.

Question 3

What happens if a person dies intestate?

Answer 3

The intestacy rules apply to their entire succession estate.

Question 4

What is a succession estate?

Answer 4

Assets capable of passing under a will or by intestacy.

Question 5

What is testacy?

Answer 5

When the deceased’s will covers their entire succession estate.

Question 6

What is intestacy?

Answer 6

When a person dies without making a valid will.

Question 7

What is partial intestacy?

Answer 7

When the will does not cover the entire estate.

Question 8

What are some types of property that do not pass to the succession estate?

Answer 8

1. Donations mortis causa 2. Discretionary pension scheme benefits 3. Insurance policies written in trust 4. Statutory nominations 5. Property held as beneficial joint tenants 6. Other beneficial interests under trusts.

Question 9

What is a donation mortis causa?

Answer 9

A gift made in contemplation of death with specific requirements.

Question 10

What are the requirements for a valid donation mortis causa?

Answer 10

1. Made because the donor believes they may die imminently. 2. Conditional upon the donor dying. 3. The donor parts with the property or something presenting ownership.

Question 11

What happens to discretionary pension scheme benefits upon the death of a member?

Answer 11

Payments made by the trustees do not form part of the deceased’s estate.

Question 12

How do insurance policies affect the succession estate?

Answer 12

Proceeds pass to the succession estate unless written in trust for another person.

Question 13

What is a statutory nomination?

Answer 13

A nomination made in specific accounts that passes the amount to the nominee upon death.

Question 14

What is the difference between joint tenants and tenants in common?

Answer 14

Joint tenants automatically pass property by survivorship; tenants in common have separate, divisible shares.

Question 15

What is the significance of the family home in beneficial co-ownership?

Answer 15

An express trust may declare equitable and beneficial ownership.

Question 16

What happens to a life tenant’s beneficial interest upon death?

Answer 16

It does not form part of their succession estate.

Question 17

How is a deceased person’s succession estate identified?

Answer 17

Assets held in trust are usually not included in the succession estate.

Question 18

What determines entitlement to the estate on intestacy?

Answer 18

Which relatives survive the deceased, based on the statutory order of entitlement.

Question 19

What happens if the intestate leaves a spouse but no issue?

Answer 19

The spouse inherits the entire succession estate absolutely.

Question 20

What is the order of entitlement if the intestate leaves no spouse or issue?

Answer 20

1. Parents 2. Siblings of whole blood 3. Siblings of half blood 4. Grandparents 5. Uncles and aunts of whole blood 6. Uncles and aunts of half blood 7. The crown as bona vacantia.

Question 21

What is the spouse’s right regarding the marital home?

Answer 21

They may elect to appropriate the home in satisfaction of their statutory entitlements.

Question 22

What is co-ownership?

Answer 22

Property owned by more than one owner, which can be held as joint tenants or tenants in common.

Question 23

What is a restriction in the proprietorship register?

Answer 23

It prevents certain dealings against the title unless terms are complied with.

Question 24

Why does the surviving tenant in common need a second trustee?

Answer 24

To ensure the property can be sold free from beneficial interests.