Publication

If I gave you diamonds and pearls… Prince, contested estates, and intestacy in NSW

by Paul Evans
03 May 2016
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What do Martin Luther King Jr, Amy Winehouse, Pablo Picasso, Stieg Larsson, Abraham Lincoln and now Prince have in common?

All are examples of famous individuals who died without leaving a valid will. 

As the world comes to terms with the passing of one of the most prolific musicians in pop music, Prince's relatives are left with a confusing puzzle: how to deal with Prince's substantial estate when there is no record of his wishes?

Prince's sister, Tyka Nelson, and five other half-siblings stand on the precipice of sharing Prince's substantial estate amongst themselves.  However, as the great man left no will behind, they will also share in substantial legal fees and an uncertainty that may last for many years.

INTESTACY

When a person dies without leaving a valid will, he or she is said to have died "intestate." Intestacy has a number of consequences for that person's assets and the family and friends left behind.

If you die intestate, your assets will not necessarily be distributed the way you want. The intestacy rules decide who gets what.

The intestacy rules in New South Wales prioritise your spouse, then children, then parents and grandparents, then siblings. 

The problem with this is that this division may not be what you would have chosen. 

When a person dies leaving a will, the process for taking control of the assets in the estate is straightforward. The executor will apply for a grant of Probate and distribute the assets in accordance with the terms of the will.

Where a person has died without a will, the family members left behind do not automatically get to deal with the estate assets. 

A person who is entitled to part of the estate must apply to the Supreme Court to be appointed administrator of the estate. That person must prove their relationship to the deceased. In the case of a de facto relationship, for example, the surviving de facto spouse must provide evidence that the relationship was indeed de facto. Other family members of the deceased person may be entitled to apply and so may need to provide written consent to allow the applicant to become the administrator. In practical terms, this can mean months or even years spent tracking down long lost relatives. In our experience, disputes often arise.

The process can be long, tiring, and upsetting.  It is also unnecessary.

WHAT SHOULD YOU DO?

You should make a will.

Your will should appoint a person as your executor and say how you want your estate distributed. 

Many people delay making a will out of superstition, concern about the cost, or – most commonly – because they assume that they will have plenty of opportunity to do so in the future.

Intestacy is rarely planned. The notable people we mentioned in the introduction all died suddenly.  

The benefits of having a will made – not sometime in the future, but now – are clear. While intestacy does not affect you, it makes a difficult time much harder for those you leave behind. 

In Prince's case, rather than sitting back and enjoying his immense back catalogue, his family must deal with the consequences of his failure to leave a will.

Authors: 
Paul Evans, Partner
James d'Apice, Associate
Isabel Mackay, Lawyer