Not everyone dies with a valid Will. Often, we think people put aside the idea of making these types of important decisions because they believe they have time to take care of it at a later date. Unfortunately, sometimes tragedy strikes suddenly, or sickness takes someone quickly, and a Will has not been entered into. Other times a drafted Will fails due to improper execution, assets that are not included, or a lack of mental capacity of the person entering into the Will. Under these circumstances, the estate of the deceased will be distributed according to the laws of intestacy.

When the laws of intestacy are used to distribute the assets of the deceased, the distribution must happen in a certain manner. First, the assets will be allocated to pay for;

  1. Funeral Expenses
  2. Taxes
  3. Outstanding Debts to lenders/creditors
  4. Any Administrative or Legal Fees

Thereafter, the following people can inherit from the estate;

  • Spouse
  • Children and Grandchildren
  • Parents
  • Siblings
  • Grandparents
  • Aunts and Uncles
  • Cousins
  • The State

It is important to note that when a person dies without a Will, any freedom of choice, or expectation of how their assets were intended to be distributed, will not be honoured by the court. Instead, the law will distribute the assets in the order presented above. Therefore, any special bequeaths you might have verbally spoken of or hoped to make to family, friends or charity, will not be distributed accordingly.

In the instance that a family member dies intestate, someone must take the responsibility of applying for Letters of Administration which will allow the court to proceed to distribute the estate of the deceased. Before applying for Letters of Administration, the family must be sure that no Will is available.

Subsequent to proving the lack of a valid Will, the following documents will need to be obtained and filed with the court;

  1. An affidavit that there is no de facto spouse
  2. An application for affidavit of administrator (these responsibilities are similar to those of an executor)
  3. An administration bond, if necessary

It is imperative that the person making the application complete all of the necessary steps of the investigation, information and notification before the estate is distributed by the court. This includes proof of the lack of a valid Will, list of living relatives of the deceased, list of all assets and debts of the deceased and publication of the death certificate in accordance with all rules and regulations.

Generally, if somebody dies and they are married, the spouse will receive the bulk of the estate. However, if there is another living spouse, children from a different relationship, or if the deceased owned a joint tenancy with someone, assets and real property may be distributed to these persons.

What if I’m in a de facto relationship?

If the deceased was in a de facto relationship, the distribution will be similar to having a spouse. First, the court must determine that an actual de facto relationship was in existence at the time of death. This is easily qualified if the deceased was either in a continuous relationship for 2 or more years or has children with their partner.

Under these circumstances the deceased’s estate will be distributed as follows;

  1. If there are no children of the deceased, then to the de facto partner receives the whole of the estate                            
  2. If you and your partner had children together, then again, the entire estate is distributed to the de facto partner
  3. If your partner had children with another individual then, as their partner, you are entitled to;
    1. Your deceased partner’s personal effects
    2. The statutory legacy (which is distributed in accordance with the Succession Act)
    3. The balance of the estate distributed half to the de facto partner

Finally, if you are single and you die without a Will your parents will be the beneficiaries of your estate. If you have one deceased parent, then your estate will be divided between your living parent and your siblings. And if you have no living parents, then you siblings (including half-siblings) will inherit, equally.

If you die without a Will your assets will be taken care of by the intestacy laws. However, it is always a smarter choice to take the time to review your finances, including real and personal property, and draft and properly execute a Will. By doing so you secure that your wishes for the distribution of your assets are fully implemented in accordance with your choices.

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.