Many Australians put off making a will. It can feel like a job for later. But if you die without a valid will, the law decides who receives what you own. This is called dying intestate.
The rules are set by each state and territory, so they are not the same across the country. They also change from time to time. This post gives a general picture of how intestacy works, with examples from Western Australia, South Australia, Victoria and NSW.
A person dies intestate when they leave no valid will. Intestacy can also apply when a will only deals with part of the estate, or when the will is not valid. Legal Aid WA explains this on its page about dying without a will. In those cases, a set formula in the law decides how the property is shared.
The formula does not look at your wishes or your personal situation. It follows family relationships in a fixed order. The result may or may not match what you would have chosen. In NSW, for example, stepchildren are not included in the intestacy rules.
In Western Australia, the Administration Act 1903 sets out how property is shared. Legal Aid WA says the rules are complicated and depend on the value of the estate and which family members are left. Other states have their own laws and their own dollar figures. That means two similar families can see different results in different states.
A surviving partner and children are generally first in line. In South Australia, the Legal Services Commission says a spouse or domestic partner with no children receives the whole estate. If there are children too and the estate is worth $120,000 or less, the partner still receives everything. If the estate is worth more, the partner receives $120,000 plus half of the rest, and the children share the other half equally.
Victoria works differently. Victoria Legal Aid says a surviving partner receives the whole estate, although children from another relationship may receive some of it if the estate is large enough. The figure it gives is about $500,000 left after debts and funeral costs are paid. If there is no partner, the estate is shared equally among the children.
In South Australia, children include adult children, young children and adopted children. Stepchildren are left out of the formula. Grandchildren can step in where their own parent has died. These details show why a general rule of thumb is not enough.
If there is no partner, child or grandchild, the estate passes to other relatives in a set order. The South Australian factsheet lists parents first, then brothers and sisters, then nieces and nephews, then grandparents, then aunts and uncles, then first cousins. The children of a relative who has died can sometimes take that relative’s share. Victoria follows a similar order that ends with cousins.
If no living relatives can be found, the estate goes to the government. The search for relatives can take a long time. NSW Trustee and Guardian says it can take several years when research overseas is needed. While the search goes on, the administrator looks after the assets and pays the debts.
Partners who were not married can still have rights. In Victoria, a domestic partner generally needs to have lived with the person for two years, have a child together or have registered the relationship. In Western Australia, a de facto partner who lived with the deceased for at least two years immediately before death may be entitled to a share in certain circumstances. The partner must be able to show the relationship existed, which is not always simple.
Relationship changes are a good time to review your plans. Separation can leave you feeling insecure about your future after divorce, and part of that is knowing who would receive your property. Without a will, the result depends on the relationships the law recognises when you die. A lawyer can explain how that applies to you.
When there is no will, there is no executor. Someone needs to apply to the Supreme Court for letters of administration. In Western Australia, any adult who is entitled to a share can apply to the Probate Office of the Supreme Court. Normally the married or de facto partner or next of kin applies. If no suitable person is available, the court can appoint another person or body.
The Public Trustee can also administer the estate for a fee. The administrator looks after the assets, pays the debts and then shares what is left under the intestacy rules. This is a formal court process. Legal Aid WA notes that the application may require a lawyer. It also says it does not help with inheritance matters, so families usually need private advice.
Superannuation does not always form part of the estate. NSW Trustee and Guardian says that if there are no dependants and no binding beneficiary nomination, super may be paid into the estate. Checking your super nominations is a simple step that sits alongside a will. Your fund can tell you what nomination is in place.
The intestacy rules are not always the final word. The South Australian intestacy factsheet says a family provision order can be sought from the Supreme Court, and it may change how the estate is shared. Stepchildren, who are left out of the formula, may be able to apply. This kind of claim is closely related to how people dispute the contents of a will.
A valid will lets you choose who receives your property and who manages your estate. Victoria Legal Aid describes a valid will as the safest way to make sure your partner receives what you intend. It also lets you plan for people the intestacy rules leave out, such as stepchildren or close friends. A will should be reviewed when your life changes.
Parents of young children have extra reasons to plan ahead. A will can set out your wishes for your children, while care arrangements after separation are often dealt with through parenting orders. Business owners should also think about what happens to their business, much like the planning involved in selling your business. Getting advice early can save your family time and stress later.
Not always. It depends on your state, the value of the estate and whether you have children. In South Australia, a partner with no children receives everything, but the estate is shared once it is over $120,000 and there are children. Other states use different rules.
Stepchildren are generally not included in the intestacy rules. This is the case in NSW and South Australia. In South Australia, a stepchild may still be able to apply for a family provision order. A lawyer can explain whether that option exists in your state.
The estate goes to the government if there are no living relatives. Before that happens, the administrator searches for family members. In NSW, this can take several years where overseas research is needed. The assets are looked after while the search continues.
Usually the partner or next of kin applies for letters of administration. In Western Australia, any person over 18 who is entitled to a share can apply. If no one suitable is available, the court can appoint another person or body. The Public Trustee can also act for a fee.
This article is general information only and is not legal advice. Intestacy laws differ between states and territories and they change over time. The dollar figures and rules mentioned here may not apply to your situation. Please speak with a qualified lawyer in your state about your own circumstances.
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