Disclaimer: The following is for informational purposes only. It is not intended to constitute legal advice, or to recommend a course of action, and does not create an attorney-client relationship between the reader and Renuka Somers, or Somers Tax Law, PLLC.

“Intestacy’ refers to the circumstance in which a person dies without a valid Will.
In a cross-border context, this could occur where, for example:

• a decedent leaves assets that are held in their own name (i.e. outside of trusts or controlled corporations), the distribution of which is not specified in a valid Will, or
• there is a “deemed intestacy” due to a Will prepared at a later date (a “later Will”), unintentionally revoking the terms of an earlier Will which dealt with assets in another jurisdiction, and which are not dealt with in the later Will, or
• the decedent does not have a valid Will – i.e. one that has been prepared, executed, and witnessed, in compliance with the formalities of the relevant jurisdiction(s) where the decedent held assets.

The consequences of an intestacy are significant, costly, and time-consuming.

In the U.S., the “closest distributee” would need to file for administration of the estate, in the Surrogate’s Court in the county where the decedent had their primary residence. In Australia, the family may need to apply to the relevant State Supreme Court for Letters of Administration.

Additionally, intestacy succession laws generally mandate distribution of assets to the decedent’s surviving spouse (or a registered domestic partner), surviving children, and other blood relatives. In the absence of living relatives, the estate could be distributed to the state. This could mean that in the absence of a valid Will, the decedent’s actual wishes in relation to distributions to a “common law” spouse may not be regarded, as only some U.S. states recognize common law marriages (in such instances, a common law spouse may only inherit jointly held assets). A decedent’s wishes in relation to distributions of assets to close friends and charities may also go unheeded.

It is prudent therefore to ensure that you have a valid Will in each jurisdiction that you hold assets in. An “International Will” that satisfies the formalities of the UNIDROIT Convention, may be appropriate, in some circumstances, if you hold assets in countries that are signatories to, or have ratified, the Convention, and U.S. States, Districts, and Territories that have ratified the Convention (only some have done so).