Dying Intestate: What Happens if You Die Without a Will in Australia?

Nicola Middlemiss

Nicola Middlemiss

18/05/2022

In Australia, if you die without a will, it’s known as dying intestate. In these cases, a court must approve a person to administer the deceased estate.

If someone dies without a will, this is called dying intestate.

When this happens, it’s usually down to the courts to appoint an executor of the estate and to name beneficiaries.

In some cases, the process can be lengthy, expensive, and involve disputes. In others, it will be fairly straight-forward.

To ensure your assets go where you want them to, it’s important to write a will. However, if someone close to you has died without a will, it’s likely their estate will be distributed according to intestacy laws.

This guide will help you understand the rules and the administration process. Topics include:

What is intestacy?
What are the rules of intestacy?
How to deal with an intestate estate
Who can administer an intestate estate?
What are the duties of an estate administrator?
Disadvantages of dying intestate

What is intestacy?

Intestacy is when a person dies without having made a valid will. They are referred to as having died intestate. Intestacy can occur if:

  • The deceased did not write a will
  • The original will has been lost
  • The original will doesn’t deal with all of the deceased’s assets and property
  • The will wasn’t valid, signed or witnessed according to law
  • It’s deemed that the will was written while the person was mentally incapable or under duress.

What are the rules of intestacy?

When someone dies without a valid will, their estate is dealt with according to the laws of intestacy.

The laws of intestacy vary slightly in each Australian state and territory, with different means used to decide the next of kin and what percentage of the estate they inherit.

Broadly speaking though, the estate will be split between the dead person’s spouse and children. In cases where there was no spouse or children, the state will determine if there are any other, more distant relatives that are eligible for inheritance.

If there are no eligible relatives, the estate will pass to the government.

How to deal with an intestate estate

Usually, an executor is named in a person’s will. That person is responsible for paying off any debts, distributing the estate to beneficiaries, and carrying out any wishes in the will.

However, when someone dies without a will, there is no legally recognised executor. In this case, someone who believes they are an appropriate executor must apply to the state’s Supreme Court to be granted letters of administration.

If the application is successful, the person will be granted the legal right to administer the deceased estate and distribute its assets.

Who can administer an intestate estate?

Usually, the person who has the greatest entitlement to the estate will apply for the grant of letters of administration.

This person would be the spouse or partner, or one or more surviving children if there is no spouse. If there is no spouse or children, the closest next of kin can apply to be the administrator. That could be a grandparent, sibling, or cousin, for example.

If the closest next of kin does not wish to administer the estate, they can engage a solicitor or trustee company to apply for them instead.

Sometimes, disputes can happen when more than one person believes they should be the administrator. In these cases, the dispute has to be settled before the administration of the estate can begin.

What are the duties of an estate administrator?

The role of an estate administrator is quite similar to an executor named in a will.

The biggest difference is that the executor may be granted additional powers in the will, while the administrator is limited to powers that are granted by state law.

Some administrator responsibilities may include:

  • Locating and assessing assets. The administrator has to collect the physical belongings, financial accounts, and other assets of the deceased estate, and arrange to have them valued. Any liabilities should also be assessed to determine the estate’s net value.
  • Protecting the assets. Once the assets are collected, the administrator must keep them safe. This may involve taking out insurance, maintaining property and possessions, and managing financial accounts.
  • Informing relevant bodies of the death. The administrator should notify government agencies (such as Centrelink and the Tax Office) and investment bodies (such as banks, building societies, and share registries).
  • Paying debts and collecting monies. The administrator must pay any outstanding debts or bills using funds from the estate and collect any money owed to the deceased estate. This may also involve lodging tax returns and claiming life insurance and superannuation.
  • Distributing assets. The administrator determines who is given something from the deceased estate and the amount they get under state laws of intestacy. Once this is determined, they distribute assets and property accordingly.

Disadvantages of dying intestate

Not having a will in place can cause significant complications when you die. The intestacy process can be long and drawn out, and the final distributions of your estate might not reflect your wishes. Key disadvantages of dying intestate include:

  • Potential disputes among friends and loved ones
  • No clear guide for settling your affairs
  • No personal control over the distribution of your assets
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