The intestacy provisions of the Administration and Probate Act 1958 apply when a person dies without a valid will or leaves a will which does not effectively dispose/distribute the estate (wholly or partially). The deceased who passed away without a will is often called the “intestate”.
If a person dies without leaving a will, rather than applying for a Grant of Probate to appointed an executor, a close family member or appropriate next of kin must apply to the Supreme Court for Letters of Administration to become the administrator of the estate.
The intestacy distribution provisions are mandated by legislation and may not necessarily follow or reflect the wishes of a deceased. Accordingly, it is extremely important to make sure that you have a valid will so that your estate is distributed according to your wishes. You should also regularly review your will and ensure that it suits your current circumstances. Click here to find out more about when you should review/update your will.
Who is entitled to benefit under the laws of intestacy?
The following is a brief summary of how the law of intestacy is applied in different circumstances:
Partner – no child (Section 70J)
Where the intestate had one partner but no children, the partner is entitled to the whole of the estate.
Partner and child who is also a child of that partner (Section 70K)
Where the intestate had one partner and a child (or children) from that same partner, the partner is entitled to the whole of the estate.
Partner and child who is not the child of that partner (Section 70L)
If the value of the estate is worth less than the partner’s statutory legacy (currently $451 909), then the partner is entitled to the whole of the estate, including personal chattels.
If the value of the estate is in excess does exceed the partner’s statutory legacy (currently $451 909), then the partner is entitled to personal chattels, statutory legacy and interest, and one half of the balance of the estate. The remaining one half of the estate is to be shared equally by any children of the intestate.
Child but no partner (Section 70ZG)
Where the intestate has a child but no partner, then the estate is to go to that child or if more than one, equally between them.
No Partner or child (Sections 70ZH-70ZL)
If the intestate has no children or partner then the estate is to be distributed according the following hierarchy:
- Parents
- Siblings/issue
- Grandparents
- Aunts and uncles/cousins by representation
- The Crown
Applying for letters of administration
Where a family member has passed away without a will, engaging ASAP Lawyers services can be of a huge benefit. We can provide assistance with the application process in document cultivation and reviewing the application to meet the standards of the Court as well as the proper distribution of the estate. We strive to make the process as simple and straight forward as possible and guide you every step of the way.
For more details about the Letter of Administration process please see our further post or contact our team on (03) 9450 9400.