What Happens If Someone Dies Without a Will in Australia?
If someone dies without leaving a will in Australia, their estate will be distributed according to intestacy laws in their state or territory. This article will outline key information regarding this process.
Priority should always be given to the spouse and children of the deceased, including domestic partnerships (sometimes known as de facto arrangements ), registered relationships and same-sex partnerships, including same-sex couples.
Intestacy laws
If you die without leaving a will (known as intestate death), state law will decide who receives your estate – potentially leading to unequal distribution and disputes between family members.
Your estate includes all the assets owned at the time of your death, such as real property, cars, investments and debts such as mining royalties. In addition, it includes bank accounts with money in them, artwork or jewellery belonging to you and personal items that belong to you; your estate may even include life tenancies trusts and superannuation investments as part of its assets.
In NSW if you do not make a Will, intestacy laws will determine who inherits your estate. Although these rules generally follow the concept that close relatives will inherit, this may not always be true due to specific cultural traditions affecting kinship and how close relatives live together; such differences could prevent certain descendants from receiving what might have been expected under the intestacy rules. Having no Will forces courts to appoint an administrator who must establish an intricate family tree; an exercise which can prove both difficult and expensive.
Letters of administration
An up-to-date Will allows you to choose who will act as executor after your death and implement your wishes. Without one, your closest next of kin would need to apply to the Supreme Court for letters of administration from them in order to manage your estate.
Wills and estates can be an intricate process, with laws differing depending on your state. Therefore, it’s wise to consult a wills and estates specialist in your region for help with this task.
To apply for letters of administration, the next of kin (or their solicitor or trustee company) must file an application with the Supreme Court and receive legal authorization to administer their estate according to statutory distribution formula. Unfortunately, this can often be an expensive and time-consuming process with disputes between family members over who should administer. Therefore it’s wise to plan ahead and create a Will; contact CDQ today for more details!
Grants of probate
A grant of probate is legal authorization issued by the Supreme Court that permits executors of deceased estates and investments to access it according to their wishes outlined in their Will, and distribute it accordingly. Furthermore, it grants legal authority for managing these estates in accordance with New South Wales law.
Probate must be applied for immediately; delays could jeopardise asset distribution and expose loved ones to additional legal expenses.
If the deceased had children from prior relationships, these will receive equal shares in his/her estate as their spouse. De facto partners living together on a genuine domestic basis also qualify for equal shares of the estate. Under certain conditions it may be possible to challenge how an estate under intestacy rules has been distributed – this process is known as family provision claims.
Family provision claims
Family Provision Claims allow eligible individuals to file claims against an estate of the deceased if their needs have not been fulfilled by it. While family provision rules vary depending on each case, ultimately it will be up to a court judge to decide whether adequate provisions have been made or not.
Each state and territory has laws determining who inherits from an estate when someone dies intestate. These laws usually follow a pattern favoring spouses (whether married, registered partners, de facto partners or same sex individuals) first before considering children (whether biological or adopted) or dependent family members as beneficiaries.
If you need advice about what is the best approach for your estate, it is wise to seek legal guidance from an experienced lawyer like Colin Daley Quinn. He can assist in creating your Will as well as providing guidance regarding any possible family provision claims.