Question: If a person dies without having made a Will, does the State have a right to take some or all of the property, because there is no Will there?
Answer: The simple answer is No. The State has no right to the estate of a person who dies without having made a Will, unless off course, it is impossible to find the deceased’s person’s next of Kin. It is only where no next of Kin can be traced that the State can then become the ultimate successor.
Nonetheless , as I have so often stated in this column in previous Articles, it is very important that a person should make his/her Will, so that at least the estate will pass in accordance with the wishes of the deceased and not in the uncertain and haphazard fashion such as under the intestacy(no will) rules.
Where there is no Will, the estate passes to the nearest next of Kin on death and the Rules can be summarised as follows:
- Where a person dies without having made a Will, and leaving a spouse with no children, the surviving Spouse is entitled to everything;
- Where a person dies without having made a Will, and leaving a spouse with children, the surviving spouse is entitled to two-thirds of the estate and the remainder to the children in equal shares;
- Where a person dies without making a Will and leaving children only, all the children are entitled in equal shares taking in to account also children of deceased children;
- Where a person dies without having made a Will and leaving parents and Brothers and/or sisters surviving,(in other words the deceased was not married for example and had therefore no spouse or children)the parents are entitled to the entire estate as the nearest next of kin;
- Where a person dies without having made a Will and leaving Brothers and/or sisters surviving (no children or spouse or parent, for example) the Brothers and sisters are entitled to the entire estate in equal shares;
- Where a person dies without having made a Will and leaving Brothers sisters and children of deceased brother or sister (no spouse, children or parents), the Brothers and sisters are entitled to the entire estate in equal shares and the children of a deceased brother or sister take their parent’s share.
Where there are no surviving spouse, children, parents, brothers or sisters or children of brothers or sisters, the property is divided between the next of kin in equal shares, for example, the nearest blood relation, and in this case it would be cousins. The first cousins initially would be the nearest next of Kin in this situation.
It is only where there are no next of kin that the State steps in as the final successor and all of the property goes to the Minister for Finance. This would be an extremely rare situation as usually next of kin can be traced for everyone.