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A Will (Last Will & Testament) is a legally binding document that explains how you wish for your estate to be distributed when you die. If you die without a Will (or pass away with an invalid will), it's known as dying intestate, and certain laws of intestacy apply. In this article, we will explain how a person's estate is distributed to beneficiaries if they die without a Will, and who is responsible for administering their estate.
The most important thing to understand is that if you die intestate, your estate will be distributed under a standard formula set out by state government law. The formula varies slightly between state and territory, but generally, in absence of a Will, your assets will be distributed by default to your family – although perhaps not in accordance with your wishes or preferred allocation. The formula gives no consideration for how prominent a person was in your life, nor the value that you placed on possessions intended as gifts for someone in particular.
When no Will exists, disputes often arise and these arguments are often fought in Court. Legal costs are expensive and will usually come out of the estate, so this will reduce the amount that your loved ones end up receiving.
To avoid unnecessary disagreements, confusion, legal battles, fees, delays and family feuds – get a Will!
Final thoughts on making a Will
Writing a Will is the best thing you can do to minimise the additional stress on your family and friends who will already be experiencing the pain of losing you.
This article answers the most common questions relating to dying intestate - where someone has passed without a valid Will including:
- If I die without a Will, who gets my money?
- Who’s in charge of the estate if someone dies intestate?
- Who has legal authority if there is a Will?
- Who has legal authority if there is no Will?
- What if there are multiple Wills?
If you die without a Will, the rules of intestacy follow a hierarchy of who should benefit from your estate.
If I die without a Will, who gets my money?
Dying without a valid Will is known as dying intestate, which means the law determines how the estate is to be administered. These rules of intestacy follow a hierarchy of who should benefit from the estate. As every family relationship is different, those on the top of the list may not always be the most ideal recipients of your assets. And if you have no Will or and no beneficiaries that fit under the hierarchy, the state government is then entitled to your entire estate.
The formula of intestacy varies slightly between each Australian state and territory, so you can check which applies by contacting the Probate Office in your state.
However, the general formula for distributing the estate of a person who has died without a Will is as follows:
1. If the person died intestate and left behind a spouse, then all of the estate goes to them. It’s important to note that any other relatives or family, including your parents, siblings, niece, nephew or close friends are not accounted for if the person is survived by a spouse.
In some cases, if there were children from another relationship, then some of the estate may also go to them, but that depends on the amount of money left in the estate after debts and expenses are paid. Since 2017, Australian law has recognised de facto relationships regardless of gender, so same-sex relationships now have the same entitlements as heterosexual relationships.
However, it's important to note that if a person dies intestate and was in a de facto relationship that intestacy laws do not recognise, the partner and any of their dependents will not have any claim on the estate.
2. If a person died intestate and was survived by a spouse and children of that relationship, then the spouse is entitled to the entire estate.
3. If a person died intestate and was survived by a spouse and children born from a different relationship, then the spouse will receive all the personal chattels (or possessions), the 1st $451,909 of the estate. The balance is then divided between the spouse and the children, the spouse will receive 50% of the balance and the children sharing 50%.
If any child is under the age of 18, their guardian will manage their inheritance until they turn 18. Minor children will receive their share when they turn 18. It’s important to note that estate law does not take into account any beneficiaries’ ability to manage their inheritance.
4. If a person died intestate and was survived by children but no spouse, all children (from past and present marriages) are entitled to equal shares of the estate. Again, if any children are minors, they will receive their benefit when they turn 18.
If there are children that have already passed away with children of their own, the child’s children take the share their parent would have inherited.
5. If a person dies intestate and had no spouse or children, then all the estate goes first to any surviving parents. If they are both alive, each parent will receive an equal share of half the estate. If there are no surviving parents, then the hierarchy is generally as follows:
- any surviving siblings are entitled to equal shares of the estate; then
- surviving grandparents; then
- uncles and aunts; then
When a person dies intestate, an Administrator, usually a family member, is appointed to execute the estate in accordance with laws of intestacy. However, an Administrator is not an Executor and has limited powers, which will be restricted by the rules of Probate in the applicable state or territory.
Dying without a valid Will is known as dying intestate, which means the law determines how the estate is to be administered.
Who’s in charge of the estate if someone dies intestate?
Immediately after someone dies, there are a few things that need to be taken care of.
An Executor, Administrator, or Next of Kin will need to determine who has the legal authority to make decisions and if they are willing and capable to Execute. An Executor or Administrator carries out the wishes of a person after they die, generally with regard to funeral planning and managing the deceased estate, including the distribution of assets to beneficiaries named in the Will (where one exists).
Firstly, the Executor/Administrator/Next of Kin will need to determine if the deceased made a Will, then locate it. It will guide most of the next steps in the estate administration process.
Who has legal authority if there is a Will?
Where a Will exists, it should nominate an Executor, or Executors. It should be established that they are willing to take on the responsibility to Execute the Will and the deceased estate. If they are, you can proceed through the estate administration process. However, if the Executor named in the Will elects to withdraw from the Executor duties, they must write a letter of renunciation and lodge it with their local Probate Office.
Who has legal authority if there is no Will?
Where no Will exists, the senior available Next of Kin needs to be determined. It needs to be established if they are willing and have the capacity to take on the duties of Administrator. An Executor or Administrator's role is to act in good faith and in the best interest of the deceased estate. It's their job to establish the value of the estate, administer it and distribute the estate to the deceased person's beneficiaries.
If the Administrator or Next of Kin has determined that no Will exists, they should first check if any pre-arranged funeral, pre-paid funeral or funeral insurance plans are in place. If there is an Advance Care Directive, or Advance Health Directive (or similar) there may be funeral instructions in that document.
If any funeral directive or prepaid funeral plan exists, contact the service provider to advise them of the death and determine what services are covered. To make arrangements with a Bare prepaid funeral, visit bare.com.au or call 1800 202 901.
When someone dies without a valid Will, certain laws of intestacy apply and the estate will be distributed under a standard formula set out by state government law. The formula varies slightly between state and territory, but generally in absence of a Will, your assets will be distributed by default to a surviving spouse and children.
If there are none, then the estate goes to family members. The Administrator or Next of Kin may need to seek specialist estate administration advice to assist.
What if there are multiple Wills?
If multiple Wills (or multiple versions of Wills) are found, the Administrator or Next of Kin needs to determine which is valid. This is crucial for the estate administration process. If you are unsure which Will is valid, it is recommended that you seek specialist help.
Final thoughts on dying intestate
We hope this article helps provide a better understanding of dying intestate and what happens if someone dies without a Will.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on (03) 9917 3388.
This article is not legal advice. You should chat with your solicitor or accountant for specific advice on your personal or financial situation.
More advice on estate planning is available on the Bare Cremation website including the following articles: