Understanding Testate and Intestate Succession
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The area of law generally referred to as Succession deals with the transfer of a deceased person's assets and rights to their loved ones (or others) after their death. It also deals with the payment of their debts and discharge of their obligations.
This can happen in two primary ways: testate succession or intestate succession. Each process has distinct features and involves specific legal terms.
Those people who benefit are generally known as the beneficiaries or heirs.
Often, the terms ‘beneficiary’ and ‘heir’ are confused, but they are in fact quite different, as we will see below.
✅ Testate Succession
In Testate succession, often referred to as testacy, the deceased person has legally expressed his wishes regarding his estate – in other words, the totality of his property – after death.
This is done through the execution of a formal legal document known as a will, which specifies exactly how he (the ‘testator’) wishes the estate to be distributed.
Everyone who inherits something under the will is called a beneficiary.
The will also names an Executor, a person appointed to ensure that the testator’s wishes as expressed are carried out properly, while ensuring compliance with the laws of the country, and that all debts due on the property are paid.
Although the executor can be almost anyone, it is usually a member of the testator’s family, who can be a beneficiary as well.
💡WILLS
The creation and use of a valid will involves certain formalities:
1️⃣ Witnessing
Typically, two or more individuals must observe the signing of the will in person by the testator and swear in writing to its authenticity. This is done by means of an attestation clause. Witnesses cannot be beneficiaries under the will.
2️⃣ Attestation Clause
This is a section of the will, usually at the end, that formally confirms it was signed and witnessed correctly.
3️⃣ Grant of Probate
After the testator’s death, the will must be validated through a legal process called Probate.
This involves the relevant court of law verifying the will’s authenticity and granting the executor authority to distribute the estate as per the deceased’s wishes.
Generally, in common law countries, probate applications are made by a lawyer appointed by the testator at the time the will is made, although this is not always the case.
Sometimes, the person named as executor will appoint a lawyer of his own, although he must have possession of the original will in order to do so.
Before submitting the application, the lawyer handling the matter will need to ensure that all due taxes and duties are paid, in accordance with succession and other rules.
After the Grant of Probate issues, the estate is then divided up in accordance with the testator’s wishes.
✅ Intestate Succession
It is a fact of life that many people die without leaving a valid will. In such cases, the estate is distributed according to intestacy laws, which vary depending on the jurisdiction.
Instead of a Grant of Probate, a Grant of Administration is required in intestacy cases.
In this scenario, the court appoints an Administrator to manage the estate.
This administrator is normally nominated by the lawyer handling the matter and is usually the lawyer himself or one of the legal heirs.
The role of the administrator is similar to that of the executor, but instead of following the deceased’s wishes, the administrator must distribute the assets according to the legal hierarchy of inheritance.
For example, in some countries/states, the deceased’s spouse may inherit everything, while in others, the spouse may get as little as one quarter, with everything else going to the children and even, in some cases, other relatives such as brothers, sisters and parents as well.
In Ireland, for example, the spouse inherits two thirds under intestacy, with the remaining third being divided equally between the deceased’s children.
If there are no children, the spouse inherits the whole estate.
If there is no surviving spouse, then the estate will be divided according to a specific order, starting with parents, then siblings (brothers & sisters), and so on.
💡Key Points to note
🌐 A Grant of Probate is issued where there is a will, and its main purpose is to ensure the distribution of the assets in accordance with the testator’s wishes; it is administered by an Executor.
🌐 A Grant of Administration is issued where death occurs without a will, whose purpose is to ensure the fair and lawful distribution of assets as per the laws of the land.
🌐 A will has no legal effect until the testator dies. It can be relaced by a new will at any time.
As some lawyers have described it, a will only speaks from beyond the grave!
The creation of a new will normally cancels, or nullifies, the old one. However, an amendment to a will, called a codicil, can be executed by the testator. This does not cancel the old will, but it must make reference to the old will.
🌐 Under a will, a person cannot legally inherit a debt.
After all, if your relatives ran up debts in their lifetime, that is not your fault, and you cannot be held personally liable.
However, and this is extremely important to bear in mind, any debts owed by the deceased must be paid for from their estate by the executor or administrator before the assets can be distributed.
In other words, a testator cannot say in his will, “I hereby appoint X to pay my debts.”
Likewise, creditors of the deceased cannot sue individual relatives left behind, but they can, of course, claim the debts from the estate before it is distributed.
🌐 The question is often asked:
“What happens if an executor predeceases the testator or signals his unwillingness to be an executor?”
In cases where the executor dies first – or refuses to act as such, since one cannot legally be forced to act as an executor – and he is the only executor named in the will, then the normal practice would be for the testator to execute a codicil [see above] as soon as possible, appointing a new executor.
In cases, however, where this does not happen, such as where the testator is too ill, or where the executor dies after him but before administering Probate, then one of two things will happen:
If the original executor dies intestate, a new executor is appointed from among the beneficiaries, and he will then apply for Letters of Administration to do the executor’s job
If the old executor has himself left a will and appointed an executor, that executor will administer both estates (assuming he is willing); this is known as the Chain of Representation.
✅ MY ADVICE
It is generally advisable for everyone to contact their lawyer with a view to making a will.
To avoid problems, at least two executors should be named in the will, and their willingness to act as such confirmed.
By doing so, while their passing will be no less painful for their loved ones, at least further problems can be avoided when it comes to the distribution of their estate.
In later posts, we will take a brief look at the terminology used in wills and in the applications for both Grants of Probate and Letters of Administration.